Vetting foreign nationals tedious but necessary

The Citizen – 12 August 2021

With a spotlight on corruption at immigration level, in the form of falsified visas and bribery, this has only made the topic more sensitive.

With unemployment figures at an all-time high and South Africa facing numerous economic challenges, the department of home affairs (DHA) and the department of labour are again taking steps to curb the employment of illegal foreign nationals living in the country.

With a spotlight on corruption at immigration level, in the form of falsified visas and bribery, this has only made the topic more sensitive.

Consequently, the DHA has taken action and established an anticorruption unit comprised of immigration experts, lawyers and forensic investigators, in the hopes that employment practices towards foreign nationals will be put under scrutiny.

Companies turning a blind eye to the validity of employee visas are putting themselves and their businesses at risk.

The Immigration Act 13 of 2002 and the Employment Services Act 4 of 2014 both clearly state that no one shall employ foreign nationals whose status prohibits them from being employed in South Africa.

However, there are still companies who employ candidates without doing the necessary checks ensuring they adhere to the regulations put forth in both amended Acts.

This will not only result in the immediate deportation of the foreign national, but it can also leave the South African employer facing a hefty fine or even imprisonment – not to mention the bill for repatriating the individual to their home country.

As sobering as all this is, the employee, regardless of being a foreign national without a valid working visa, is still afforded legal protection from an unfair dismissal under the Labour Relations Act, especially if they can prove negligence on the part of the employer.

In other words, besides already facing penalties or imprisonment, if the act of deporting the foreign national results in them being unfairly dismissed, the employer can still be drawn into a lengthy legal dispute with the employee through the Commission for Conciliation, Mediation and Arbitration.

For small to medium enterprises, one such exercise could possibly cripple their business and force closure. For larger corporates, the full weight of the decision would be cast on the human resources (HR) department within the organisation, as they are tasked to ensure compliance and adherence to all regulations.

It could also lead to the DHA and the labour department conducting regular audits on the company’s employment records, which is akin to constant surveillance from both regulatory bodies.

The question will always be what HR departments can do to protect their company when employing foreign nationals. It is imperative to incorporate updated vetting processes when employing foreign nationals.

Fine-combing each job applicant is a tedious, but necessary, task, which forms part of the HR duties and obligations.

Understanding permit and visa types, which categories they belong to and what the accompanying regulations say about employment on that permit or visa, is just as important. While it is a challenge to stay current with legislation, it is not impossible.

There are numerous platforms and resources available to HR departments. Teachings and subsequent implementation of changes to legislation regarding the employment of foreign nationals should be a company standard.

The onus rests on the employer and the HR department in a company to provide the relevant assurances that their workforce is fully compliant in all regards. For large corporations, this can be a daunting hurdle to overcome.

Calling on the experience of an immigration specialist with a sound knowledge of immigration and employment laws, as well as permit and visa requirements, will provide the necessary peace of mind that employees have been vetted accordingly.

An immigration provider that is well versed on the specifications and requirements from the governmental stakeholders, will know the best course of action to eliminate any risk to the company. Failing which, make sure they offer specialist legal services, should there arise any legal dispute.

www.samigration.com

Your expression of interest of a business visa has reference and we have provided you with an overview of the basic requirements

A Business Visa is issued to foreign nationals wishing to invest in or purchase a business in South Africa.

Investment in own Business, with or without a South African partner.

A business visa may be issued by the Department of Home Affairs to a foreigner intending to establish or invest in a business in South Africa in which he or she may be employed, and to members of such foreigners’ immediate family providing that certain requirements have been met.

Although the Act calls for investment of R5,0 million in a business to get both temporary and permanent business visa, you can get these visas with less capital investment - sometimes for as low asR400,000 ($45,000 USD) investment using our expert team at SA Migration Services.

Many businesses do not require a capital investment as large as R5 million and in certain cases, you are allowed to reduce this amount and commit to a smaller investment if your business falls within the certain industries . The following businesses to be in the national interest, and therefore qualifying for reduction or waiver of the capitalisation requirements as determined to be in the national interest in relation to a Business Visa:

•           Agro-processing

•           Business Process Outsourcing and IT Enabled Services

•           Capital / Transport equipment, metals and electrical machinery and apparatus

•           Electro Technical

•           Textile, Clothing and Leather

•           Pulp, paper and Furniture

•           Consumer goods

•           Boatbuilding

•           Automotives and Components

•           Green Economy Industries – Power Generation / Renewable Energy

•           Advanced Manufacturing

•           Tourism infrastructure

•           Chemicals, plastic fabrication and pharmaceuticals

•           Creative and Design Industry

•           Oil and Gas

•           Mineral beneficiation

•           Infrastructure Development

•           ICT -  Information and communications technology

The Minister has declared any businesses in the following sector as undesirable and will therefore not be considered under this category of Visa :

 

a)         Businesses that import second hand motor vehicles into the Republic of South Africa

   or the purpose of exporting to other markets outside the Republic of South Africa

b)         The exotic entertainment industry

c)         Security Industry 

SA Migration Services will professionally help to arrange your Business Permits for you.

How to Qualify for a Business Visa in South Africa

How to Qualify for a Business Visa in South Africa

If you want to know how to qualify for a business visa in South Africa, read our top 5 hints and tips below. If you prefer to speak to one of our experts you can call us on any of the numbers above or request a call back, or email us.

Our top 5 hints and tips on how to qualify for a business visa in South Africa.

1. The amount you need to invest

A large part of how to qualify for a business visa in South Africa is how much money you have to invest into your new South African business. A minimum investment is required to be made into the business within a 2 year period of time. Further the source of these funds must be from outside of South Africa.

Whilst exemptions to this investment can be applied for they are granted only rarely.

1. How many jobs you will create

South Africa courts foreign investment, from SME’s through to large corporates. A large factor in it doing so is the creation of employment opportunities for local South Africans. As such your application will be scrutinised for the employment positions it creates.

60% of your employees need to be either South African citizens or permanent residency holders.

1. What sector your proposed business is in

Whilst courting foreign investment, regulations also pay attention to attracting the right sort of businesses to South Africa. There are specific sectors such as tourism and manufacturing that are deemed priority industries.

Speak to one of team about the industry sectors currently deemed a priority.

1. A business plan

Many see a business plan as a blueprint to the success of the business. It is a direct reflection on the amount of research, innovation and thought that has gone into planning the operation.

Further, the business plan will also identify the business’s chances of succeeding and the applicant’s own business ability.

A comprehensive business plan which also highlights the applicant’s ability to meet the business visa requirements is a must.

1. Understanding the ongoing requirements

How to qualify for a business visa in South Africa is one thing; keeping the visa is another, and often little or poor advice is given to this important consideration.

Once the business visa is obtained there are ongoing requirements that must be adhered to. Temporary residency holders are obliged to report back to the Department of Home Affairs every 2 years, whilst permanent residency holders must do similar 2 years after receiving permanent residency and 3 years thereafter.

Know your future obligations and ensure you work with a company that is committed to you over the term of such obligations.

Immigration to South Africa on a business visa

Immigration to South Africa on a business visa

One of the ways of obtaining residency in South Africa is via Immigration to South Africa on a business visa. A business visa does not just mean setting up a business, or buying into one in South Africa, but it also means you wish to work within this business. Should you be wishing to invest, but not wishing to work in the business please see information here on the investors visa.

Below we give you ten need-to-know facts on Immigration to South Africa on a business visa:

1. Who can apply for a business visa?

Immigration to South Africa on a business visa is for foreign nationalities that are not married or in partnerships with either a South African citizen or permanent residency holder.

Those in such a relationship need to apply for either a spousal visa or life partner visa (depending upon their marital status) and obtain an endorsement to this visa rather than a standalone business visa.

2. What residency can you obtain with Immigration to South Africa on a business visa?

You would first apply for temporary residency (a business visa) which, if granted, is normally for a period of not more than 3 years. Once temporary residency has been received you may make an application for permanent residency (a business permit).

3. Can my family also immigrate if I am granted this visa?

As with all visa in South Africa each applicant is granted a visa in their own right. Your spouse or partner and any children of a non school age would need to apply for accompanying visa and children in education would require study visa.

4. What is the basic criteria for a business visa?

The Department of Home Affairs will require, amongst other items:

• A comprehensive business plan;
• An appropriative business structure;
• Undertaking with regards to the employment of South Africans;
• An investment amount of not less than 5 million rand originating from funds abroad;

5. Can I run more than one business?

Immigration to South Africa, on a business visa, is specific to a particular business and does not entitle you to work within any other entity other than the one specified on the application and subsequent visa. You can however freely make investments into other businesses but not work in them.

6. I have seen reports that you can get exemptions from investing the R5 million rand; is this true?

The immigration act does allow for this, you can view more here on business categories that may qualify for a waiver.

7. How many people must I commit to employing?

It is a requirement that 60% of your staff are South African citizens, or Permanent residency holders.

8. In what format must the business plan be?

There is no specified format but business plans are central to Immigration to South Africa on a business visa and as such must be comprehensive. It should also be remembered that the business plan also needs to be written in accordance with specific items that the Department of Home Affairs will look out for in judging your application so it will vary from a normal one.

9. Where should I make an application?

Legislation forbids any visa application that would result in a change of status. As an example, entering South Africa on a tourist visa and then applying whilst on this tourist visa for Immigration to South Africa on a business visa, would not be allowed. Where a change of status does not apply then the application can be made in South Africa.

Sa Migration International

WhatsApp  Tel No : +27 (0) 82 373 8415

 

Tel No office : +27 (0) 82 373 8415 ( WhatsApp )

Tel No admin : +27 (0) 64 126 3073
Tel No sales : +27 (0) 74 0366127
Fax No : 086 579 0155

 

 

www.samigration.com

The Immigration Act and the Department of Home Affairs abhors fraudulent documents. Section 29(1)(f) provides ; The following foreigners are prohibited person and do not qualify for a port of entry visa, admission into the republic , visa or a permanent residence permit … anyone found in possession of a fraudulent visa, passport , permanent residence permit or identification document. Section 49(14) and 49(15) makes the use or attempted use of or uttering of any fraudulent document for the purpose of entering remaining in or departing from and residing in the republic a criminal offence, of which a person on conviction is liable to imprisonment of up to 15 years. So when one finds him of herself in possession of a fraudulent document how does one comeback from this immigration abyss?

 

 

There are two paths to rehabilitating yourself when you have been rendered a prohibited person for using or attempting to use or uttering a fraudulent visa, permit or Identity document. Section 29(2) makes provision for the Director General on good cause declare that person is no longer a prohibited person. This is done by way of submitting an application to Director General setting forth good cause why the person should be removed from the prohibited persons list.

 

Another avenue is in terms of section 32 of the Immigration Act and Regulation 30. Section 32 is an appropriate route in the event that the person is still in the country and looking to apply for a new visa. Regulation 30 provides 3 tests, that a person is an illegal foreigner, who has neither been arrested for the purpose of deportation nor been ordered to leave and who wishes to apply for a status after the expiry of his or her status.

 

Section 32 is applicable because by virtue of being in possession of a fraudulent permit or visa and have not been arrested ordered to leave then you meet the criteria under section 32.

 

The next criteria is that the person would need to show good cause why you failed to renew your previous visa. This would include the circumstances that led to you being in possession of fraudulent document. Often people are victims of an elaborate immigration scam and their permits would have worked for few times and so would be unaware of the fraudulent nature of their status until it is brought to their attention. They are as much victims of the fraud as is the state. It is important to be able to prove definitively that a third party was at play and in our experience, this works to the persons advantage.

 

The last criteria would be proof that the person is eligible for the visa that they intend to apply for. This is submitted in the form of all the required documents for the respective visa.

It is important to highlight that immigration issues of this kind do not go away with time. The Department will always discover that a person’s status is fraudulent or obtained in a fraudulent manner. So tackling these head on will be the best approach to any similar situation. The effect of coming forward to attempt to regularise your status is better than not doing anything. Any good faith effort to rehabilitate your status will certainly mitigate risks of being criminally convicted and will count as a positive in an application to remove the prohibited person status. It is also accepted that not every case can be rehabilitated.

 

www.samigration.com

On the 26th of May 2014 the Department of Home Affairs (the ‘Department’) showed its intent to amend the existing immigration laws that had been in effect since the 1st of July 2005.

Without any transitional period, the Department made it patently clear that a foreigner who overstays, as set out in the Immigration Regulations 2014, would no longer be sanctioned by a mere fine on departure, but rather by a compulsory and non-discretionary declaration of undesirability and on ban on any such foreigner from returning to South Africa for up to 5 years.

Therefore a foreign applicant departing South Africa who:

• Has a previous visa and has renewed or changed status of same in South Africa and has a pending application attributed solely as a result of the Department’s inefficiency in failing to adjudicate expeditiously;
• Has South African relatives remaining in South Africa despite he or she being the spouse, parent, child or dependent minor relative of a South African citizen or permanent resident;
• Has overstayed through no fault on medical grounds;
• Has overstayed due to simply ignorance or fault.

All the above cases would all be treated exactly the same since there is no discretion in the application of an overstay in the departure out of South Africa and being declared undesirable up to 5 years.

The immigration laws – section 30(1)(h), regulation 27 & directive 9

On the 26th of May 2014, the Department sought to repeal the Immigration Regulations of 2005 and introduced a series of statutory amendments to the Immigration Act of 2002, as amended, and to the previous Immigration Regulations of 2005.

Regrettably, in light of the severity of the effect of the new laws, very little consultation with the public and its own immigration advisory board took place by the then Minister Naledi Pandor and in so doing turned the face of our immigration policy on its head.

The introduction of new draconian sanctions, not only affecting those foreigners leaving South Africa for various reasons, but so too local South Africans – with the declaration of being determined to be an ‘undesirable’ person in terms of section 30(1)(h) of the Immigration Act 13 of 2002, as amended, read together with Regulation 27 of the Immigration Regulations, and most significantly, Directive 9 issued by the Director-General of Home Affairs.

So how do I become undesirable?

The effect of the 2014 Regulations and especially Directive 9 will now empower and instruct the immigration officials at the international airports and border posts of South Africa to impose a declaration of undesirability that will effectively bar the re-entry into South Africa for a fixed period of time before re-entry.

Any foreigner, no matter what the circumstance or context is, who has then overstayed, will on departure in terms of section 50(1), 30(1)(h) of the Act, read with Regulation 27 and Directive 9 be declared undesirable and issued with a Form 19 to confirm the declaration.

Can I appeal the undesirability and return to South Africa?

As outlined above, any foreigner who has overstayed, will as a matter of course be declared undesirable for a period of up to 5 years.

What the Department has allowed for is an appeal mechanism to the Director-General within 10 days or to the Minister of Home Affairs without a defined time period.

It was evident that after a mere few days of operation that the new laws on undesirability and imminent litigation by immigration law firms, like ourselves, against the Department they introduced a more visible and transparent internal appeal mechanism to those affected by such new laws.

In this way those foreigner who have been declared undesirable can now appeal and ventilate their case with the Department in a more transparent manner as to whether the ban should be lifted or not. And, as importantly, in a reasonable period of time.

Of course, it is not obligatory on the Department to lift the undesirability or in fact have the matter adjudicated in a short space of time.

www.samigration.com

The Tether logo is seen on a smartphone in this arranged photograph taken in Washington, D.C., U.S., on Tuesday, Dec. 5, 2017. Tether, which started trading in 2015, is described as a stable alternative to bitcoin's wild price swings.

Hackers perpetrated what is likely the biggest theft ever in the world of decentralized finance, stealing about $600 million in cryptocurrency from a protocol known as PolyNetwork that lets users swap tokens across multiple blockchains. 

Tens of thousands of people are affected by the hack, PolyNetwork said in a letter posted on Twitter. About $33 million of the stablecoin Tether that was a part of the theft has been frozen by Tether’s issuer, making it unavailable to the attacker.

It isn’t clear from the PolyNetwork website who runs the protocol, which governs transactions that run on the application. DeFi, or decentralized finance has surged in popularity in the past few years in the wake of a boom in the development of applications that let people trade, borrow and lend funds to each other without intermediaries.

Security researcher SlowMist said it has found the attacker’s email, IP address and device fingerprints, the team reported on Twitter. It added that “this is likely to be a long-planned, organized and prepared attack.” Crypto exchanges including Binance are involved in helping PolyNetwork, Binance Chief Executive Officer Changeng Zhao said on Twitter.

“The hacker has begun to use decentralized exchanges to convert the stolen assets into other assets, including stablecoins,” Tom Robinson, co-founder of Ellitic, said in an email. “Tokens such as stablecoins can in theory be seized by their issuers, which could lead to them being returned to their rightful owners. However this isn’t possible for the stolen Ether, although it may be possible to seize these funds if they are sent to a centralized exchange to be cashed-out.”

With DeFi apps attracting billions in investor funds, they’ve also become frequent targets of attacks. This year, DeFi-related hacks made up more than 60% of the total hack and theft volume of crypto attacks, up from 20% in 2020, according to crypto security company CipherTrace. At $156 million, the amount netted from DeFi-related hacks in the first five months of 2021 already surpasses the $129 million stolen in DeFi-related hacks throughout all of 2020, CipherTrace said.

About $80 billion is locked in DeFi applications, making them an attractive target, according to tracker DeFi Pulse.

www.vsoftsystems.co.za