Important Updates
Important Updates
October 28, 2025 | CanadaFragomen Semiconductors Presents: "Voice of the Industry" October 2025 Q&A with Shari Liss
October 29, 2025 | Saudi ArabiaSaudi Arabia: Increased Saudization Requirements for Certain Private-Sector Healthcare Roles
October 29, 2025Saudi Arabia: Mandatory Health Insurance Prior to Temporary Work Visa Issuance
October 29, 2025 | Republic of Korea (South Korea)South Korea: K-Star Visa for Science and Tech Talent Implemented
October 28, 2025 | United KingdomArts Professional: How Easy Is It for Overseas Creatives to Work in the UK?
October 28, 2025 | CanadaFragomen Semiconductors Presents: "Voice of the Industry" October 2025 Q&A with Shari Liss
October 29, 2025 | Saudi ArabiaSaudi Arabia: Increased Saudization Requirements for Certain Private-Sector Healthcare Roles
October 29, 2025Saudi Arabia: Mandatory Health Insurance Prior to Temporary Work Visa Issuance
October 29, 2025 | Republic of Korea (South Korea)South Korea: K-Star Visa for Science and Tech Talent Implemented
October 28, 2025 | United KingdomArts Professional: How Easy Is It for Overseas Creatives to Work in the UK?
October 28, 2025 | CanadaFragomen Semiconductors Presents: "Voice of the Industry" October 2025 Q&A with Shari Liss
Subscribe
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsMagellan SeriesImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcasts & Videos
  • Spotlights
    Navigating Immigration Under the Second Trump AdministrationFragomen Consulting EuropeImmigration Matters: Your U.S. Compliance RoadmapCenter for Strategy and Applied InsightsVietnamese ImmigrationView More
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Magellan Series
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts & Videos

Spotlights

  • Navigating Immigration Under the Second Trump Administration
  • Fragomen Consulting Europe
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Center for Strategy and Applied Insights
  • Vietnamese Immigration
  • View More

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
  • Insights

Regulations on Employment of Foreign Nationals by the Department of Labour in South Africa: A Reflection

April 15, 2019

Country / Territory

  • South AfricaSouth Africa

Related offices

  • Johannesburg

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related offices

  • Johannesburg

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related offices

  • Johannesburg

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Earlier this year, the Department of Labor (DoL) requested the public and other stakeholders’ for comments into their draft Regulations, which aim to implement the principal act (Employment Services Act, 4 of 2014) that was gazetted on 7 April 2014. It comes as a welcomed development in bringing both certainty and clarity for corporate South Africa in so far as recruitment and employment of foreign nationals is concerned. It does, however, fall short on details in many respects. Perhaps that is the very purpose that DoL is inviting comments on the Regulations.

The Employment Services Act sought to provide guidance to corporates with regards to instances in which a foreign national may be employed in the Republic. Corporate entities must ensure that all options from the DoL databases, recruitment agency candidates and those from employment institutions have been exhausted in the search to fill existing employment opportunities before a foreign national is both recommended by DoL and employed by a corporate entity.  The Regulations focus on two work visa types, which are supported by DoL during the application stages as also elaborate on the Skills Transfer Plan. There is still a lot more clarity required from DoL in relation to the provisions of Section 8 (1), which does not differentiate on work visas impacted but simply states ‘An employer may not employ a foreign national within the territory of the Republic of South Africa prior to such foreign national producing an applicable and valid work permit, issued in terms of the Immigration Act’. Notably, the definition of work visas in the regulations focus only on the Corporate Work and General Work Visas and leave out the Critical Skills work visas (CSV).

Whilst DoL is not involved in the Critical Skills work visa application processes, they are silent on the transfer of these unique and critical skills, which are in short supply within the South African labour market. By not stipulating that all visa types will be impacted by these Regulations, DoL seems to be keeping the door open for skills transfer plans to be imposed on all work visa types. It is worth noting that the Intra Company Transfer Work visa is excluded in the draft Regulations, when this visa type carries a requirement for a skills transfer plan as a condition of issuance, even though, there is no clarity on how this plan should be designed and which Department is mandated to ensure compliance, verification, and enforcement.

The purpose of the skills transfer plan is presented in brief and envisaged as the means through which South African citizens (SAC) and permanent residents (PR) could benefit from skills possessed by the foreign national. The Regulation is quiet as to how the skills transfer plan must be drafted or for that matter even fails to provide a template for this purpose not to mention clarifying which parties should contract and sign the skills transfer plan. Additionally, there is no clarity on how the skill transfer must be evidenced over the duration of the visa issued to the foreign national. Should the skill recipient leave their employment, the regulations are also silent on what will be the consequence and implication to the foreign national’s status.

There remains a risk that employers of foreign skilled individuals may nominate a South African national or PR holder in a much lower position within the company purely for compliance purposes, even malicious compliance, when the local employee may not be in an appropriate educational, experience and skill level and able to receive the skills transfer from a foreign employee of senior or executive level.  The management levels provided in the Regulations are equally problematic as they do not necessarily correlate to or align with the general and standard levels that may be used and prevalent across different companies/industries. They do not address foreign employees who are at technical and specialist levels but may not be at the management level.

The Regulations and – indeed, the Employment Services Act, particularly the provisions of Section 8, cannot exist and operate outside the provisions of the Immigration Act. It is therefore envisaged that there will be amendments of the Immigration Act to bring the affected aspects of the Act in line with the proposed Regulations of the Employment Services Act. Aligning the two Acts will surely avoid confusion and disruptions for employers of foreign nationals in South Africa.

Taking the above comments into account, DoL will best achieve its intended objective with the Regulations, by ensuring that another publication of the revised regulations is made available for comment by stakeholders after considering the received inputs.  It would be prudent to consider relevant aspects and provide clarifications across the board including publishing the proposed forms and the reporting templates.

Country / Territory

  • South AfricaSouth Africa

Related offices

  • Johannesburg

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related offices

  • Johannesburg

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related offices

  • Johannesburg

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Media mentions

Arts Professional: How Easy Is It for Overseas Creatives to Work in the UK?

Partner Louise Haycock and Associate Jennifer Gray analyse the barriers and opportunities for overseas creatives navigating the UK’s immigration system.

Learn more

Blog post

Claiming British Citizenship Through Ancestral Lineage: Who Is Eligible?

Associate Chloe Evans outlines eligibility criteria for individuals seeking British citizenship based on ancestral ties.

Learn more

Fragomen news

Fragomen Semiconductors Presents: "Voice of the Industry" October 2025 Q&A with Shari Liss

Fragomen’s Semiconductor Industry Group publishes the next installment of its “Voice of the Industry” Q&A series, featuring Shari Liss, Vice President of Global Workforce Development and Initiatives at SEMI.

Learn more

Media mentions

Gazeta Prawna: Legalny napływ cudzoziemców do pracy powstrzymany

Partner Karolina Schiffter highlights how Poland’s tightened visa system affects foreign hiring and the challenges companies face in navigating it.

Learn more

Media mentions

Bloomberg Law: US Chamber Turns Trump Foe in Rare Split Over $100,000 H-1B Fee

Partner Carl Hampe provides insight on the impact of the $100,000 H-1B fee and the US Chamber of Commerce’s related lawsuit.

Learn more

Awards

Fragomen Wins 2025 FEM EMEA “Best Partnership” EMMA for Collaboration with TBB

Fragomen was honoured with the “Best Partnership Between a Corporate Organization and a Service Provider” EMMA at FEM's 2025 EMEA Summit.

Learn more

Media mentions

Global Mobility Lawyer: DOL Flags Immigration Crackdown as Risk to Food Supply

Partner Rachel Beardsley highlights how H-2A visa strategies can help sustain a skilled US agricultural workforce.

Learn more

Blog post

Intra-African Mobility: Unlocking the Continent’s Promise Through Free Movement

Director Willys Mac’Olale discusses how intra-African mobility can unlock the continent’s economic and social potential by promoting free movement, fostering integration and development.

Learn more

Blog post

Costa Rica Family Relocation: Understanding Residency for Dependents

Immigration Director Adriana Martínez Garro explains the residency process in Costa Rica for families relocating with dependents, outlining key legal considerations and steps for securing status.

Learn more

Media mentions

Financial Times: Scientists Charged Too Much to Come to Work in UK, Says Royal Society

Fragomen contributed data showing how UK visa and health surcharge costs compare with other leading research nations.

Learn more

Fragomen news

Fragomen Contributes to Migration Observatory Report on Gender and Migration in the UK

Fragomen supported this report, which explores how gender shapes migration patterns, visa routes, employment and settlement in the UK.

Learn more

Blog post

Polish Citizenship Rules Under Review: What the Proposed Amendments Mean

Senior Associate Tomasz Rdzanek or Poland Immigration Strategy Director Tomasz Rogala discuss proposed changes to Poland’s citizenship law aimed at simplifying eligibility and clarifying naturalisation procedures for foreign nationals.

Learn more

Media mentions

Arts Professional: How Easy Is It for Overseas Creatives to Work in the UK?

Partner Louise Haycock and Associate Jennifer Gray analyse the barriers and opportunities for overseas creatives navigating the UK’s immigration system.

Learn more

Blog post

Claiming British Citizenship Through Ancestral Lineage: Who Is Eligible?

Associate Chloe Evans outlines eligibility criteria for individuals seeking British citizenship based on ancestral ties.

Learn more

Fragomen news

Fragomen Semiconductors Presents: "Voice of the Industry" October 2025 Q&A with Shari Liss

Fragomen’s Semiconductor Industry Group publishes the next installment of its “Voice of the Industry” Q&A series, featuring Shari Liss, Vice President of Global Workforce Development and Initiatives at SEMI.

Learn more

Media mentions

Gazeta Prawna: Legalny napływ cudzoziemców do pracy powstrzymany

Partner Karolina Schiffter highlights how Poland’s tightened visa system affects foreign hiring and the challenges companies face in navigating it.

Learn more

Media mentions

Bloomberg Law: US Chamber Turns Trump Foe in Rare Split Over $100,000 H-1B Fee

Partner Carl Hampe provides insight on the impact of the $100,000 H-1B fee and the US Chamber of Commerce’s related lawsuit.

Learn more

Awards

Fragomen Wins 2025 FEM EMEA “Best Partnership” EMMA for Collaboration with TBB

Fragomen was honoured with the “Best Partnership Between a Corporate Organization and a Service Provider” EMMA at FEM's 2025 EMEA Summit.

Learn more

Media mentions

Global Mobility Lawyer: DOL Flags Immigration Crackdown as Risk to Food Supply

Partner Rachel Beardsley highlights how H-2A visa strategies can help sustain a skilled US agricultural workforce.

Learn more

Blog post

Intra-African Mobility: Unlocking the Continent’s Promise Through Free Movement

Director Willys Mac’Olale discusses how intra-African mobility can unlock the continent’s economic and social potential by promoting free movement, fostering integration and development.

Learn more

Blog post

Costa Rica Family Relocation: Understanding Residency for Dependents

Immigration Director Adriana Martínez Garro explains the residency process in Costa Rica for families relocating with dependents, outlining key legal considerations and steps for securing status.

Learn more

Media mentions

Financial Times: Scientists Charged Too Much to Come to Work in UK, Says Royal Society

Fragomen contributed data showing how UK visa and health surcharge costs compare with other leading research nations.

Learn more

Fragomen news

Fragomen Contributes to Migration Observatory Report on Gender and Migration in the UK

Fragomen supported this report, which explores how gender shapes migration patterns, visa routes, employment and settlement in the UK.

Learn more

Blog post

Polish Citizenship Rules Under Review: What the Proposed Amendments Mean

Senior Associate Tomasz Rdzanek or Poland Immigration Strategy Director Tomasz Rogala discuss proposed changes to Poland’s citizenship law aimed at simplifying eligibility and clarifying naturalisation procedures for foreign nationals.

Learn more

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • Twitter

© 2025 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.