EMPLOYING EXPATRIATES?

Employers are often hard pressed to find the necessary (and scarce) skills to fill selected roles within their organisation. Time and again employers turn to the international labour market to seek individuals possessing the required skillsets to support and sustain the needs of the organisation.

Employing expatriates off course comes with its own set of rules and the line is often blurred in terms of who bears responsibility, the expatriate or the employer.

WHAT ARE THE EMPLOYERS’ RESPONSIBILITIES?

In addition to ensuring a lawful work visa for the appropriate foreigner has been obtained, the employer is further responsible to ensure that they, as an organisation adhere to the responsibilities when employing a foreign national as per the Immigration Act of 2002, as amended (The Act).

The Act in Section 38 stipulates as follows –

“No person shall employ –

1. An illegal foreigner;
2. A foreigner whose status does not authorise him or her to be employed by such person; or
3. A foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.”

In a nutshell, the Employer is responsible to ensure that the foreign employee, holds and maintains the necessary, appropriate and valid work visa and complies with any and all conditions imposed there upon. Accordingly, it is essential that the expatriate at all times complies with the conditions and validity of his/her visa ensuring it coincides with his/her job title, employer and intention whilst in South Africa.

In the event that an employer wishes to employ a foreigner who does not hold a valid visa, sensibly it will be the employer’s responsibility to ensure that the relevant visa is obtained prior to the commencement of employment – the employer may sponsor the process to ensure the visa is obtained in a timely and lawful manner.

WHAT IF THE EXPATRIATE IS PROMOTED OR HIS JOB TITLE CHANGES?

Work visas, regardless of the category, will in most cases contain the job title of the expatriate as a condition to the visa i.e. the visa is conditional on him/her being employed in a certain position. When his/her job title thus changes, whether due to restructuring, a promotion etc. the employer is required to apply for a change of conditions. The Department will then issue a new visa with the new job title assuming that the candidate still complies with all statutory requirements.

HOW DO EMPLOYERS KNOW IF THEIR EMPLOYEES HOLD VALID VISAS?

Understandably, where the employer was not involved with the visa application process directly or through their service provider, there may be uncertainty in terms of the validity of their foreign employees’ visa as often it wouldn’t be within their spectrum of knowledge. Should this however be the case, employers may approach an Immigration firm and/or the Department of Home Affairs (DHA) directly to verify the visa in question.

EMPLOYEES WITH INVALID VISAS – WHAT NOW?

Every so often, employers find themselves in unprecedented situations whereby their foreign employees hold fraudulent visas and/or no visa at all.

It is important that the employer approaches the situation in a correct and timely manner by –

1. Reporting to the DHA any breach from the foreigner’s side of his or her status; and/or
2. Reporting to the DHA that the foreigner holds (or does not hold) a valid / invalid / fraudulent visa and the organisation and is willing to rectify the matter by assisting the foreigner with obtaining the necessary work visa.

WHAT ARE THE CONSEQUENCES?

It is worth noting that should the employer not adhere to the responsibilities as set in terms of the Immigration Act, the corporation will face penalties applicable to the breach of regulations –

1.  Applicable fine to the corporation as determined by the court; or
2. Imprisonment to the responsible person of the corporation – duration to be determined by the court; and
3. The corporation will further be included on the DHA’s ‘watch-list’ and subject to regular inspections by the Department to ensure they comply to their required obligations with future foreign employees.

It is thus vital for employers to become more vigilant pertaining to the responsibilities that are required when employing a foreigner, as it could become a nail-biting experience.

Click on the button below to view more on the responsibilities of an employer – extract from the presentation by Department of Home Affairs, Ben Mahlamele.