Should this be the case, applicants will be redirected to the DoL to instead obtain a recommendation certificate, which is prescribed for General Work Visa applications.
Waiver applications submitted since the last quarter of 2020 have been plagued by delays. With a recent focus and pressure on the sustained high unemployment rate, it appears that DHA has made the decision to redirect Waiver applications to the DoL for assessment.
What is a DoL Certificate?
Marisa Jacobs, Director at leading Immigration firm Xpatweb explains “a DoL Certificate is issued by the Department of Labour where South African employers can prove that, despite a diligent search, they are unable to find suitable qualified or skilled South African citizens and/or Permanent Resident holders to fill the position and are as such require a skilled foreign national to fill the role. This certificate is a separate process and prescribed requirement for a General Work Visa application, to be adjudicated and considered by DHA to allow a foreign national to work in South Africa legally.”
Unfortunately, the DoL certificate is an onerous process and takes months to be considered by the Department of Labour. This makes the process burdensome and impractical for employers and as such, they turn to the Department of Home Affairs to waive this requirement.
What is a Waiver?
In line with the Immigration Act, Section 31(2)(c), “the Minister of the Department of Home Affairs may for good cause waive any prescribed requirement or form”. The process to obtain a DoL certificate has been considered cumbersome and lengthy, however, the former Waiver process has proven to be a solution for many South African employers where good cause can be demonstrated on why a foreign resource is suitable for a vacancy.
Jacobs adds “It must be noted that not all foreign nationals will be considered for the Waiver and it’s only those with skills that are scarce in the country and the employer can demonstrate the economic benefit of such a resource to the company and the economy in general, that are considered.”
She further elaborates that “Typical roles that are successfully considered for a waiver, are those that are highly specialised and senior in nature, where there is clear evidence of skills and expertise that would not otherwise be readily available in the country. Any waiver issued is usually conditional to a transfer of skills and development of local talent. A such, the Department of Home Affairs’ waiver support does not take opportunities from South Africans but rather creates opportunities for skills transfer and succession planning through the issuance of a waiver.”
What are my options?
Where you have applied for a Waiver for the prescribed DoL Certificate, you must be prepared that a rejection may be looming, and it is recommended that your residency options and lead processing time towards your anticipated employment are pre-empted and revisited to ensure a proactive approach.
Those who are planning to apply for a Waiver to waive the DoL certificate are equally advised to reconsider their application prior to submission and consult on alternative solutions.
If you think that you might be adversely affected by these recent developments please contact us.
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