Important Updates
Important Updates
July 16, 2025 | United StatesAAML: Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys
July 17, 2025 | CanadaCanada: Permanent Residence Sponsorship Applications Under the Parents and Grandparents Program Pause Update
July 17, 2025 | 🌐Minimum Salary Changes Announced
July 17, 2025 | PolandPoland: New Employment Permit Restrictions for Reduced Work Hours and Early-Operation Employers
July 17, 2025 | SurinameSuriname: Fast-Track Service Now in Effect for Immigration Filings
July 16, 2025 | United StatesAAML: Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys
July 17, 2025 | CanadaCanada: Permanent Residence Sponsorship Applications Under the Parents and Grandparents Program Pause Update
July 17, 2025 | 🌐Minimum Salary Changes Announced
July 17, 2025 | PolandPoland: New Employment Permit Restrictions for Reduced Work Hours and Early-Operation Employers
July 17, 2025 | SurinameSuriname: Fast-Track Service Now in Effect for Immigration Filings
July 16, 2025 | United StatesAAML: Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys
Subscribe
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMedia
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 AdministrationTravel & Mobility Considerations: Situation in the Middle EastImmigration Matters: Your U.S. Compliance RoadmapHumanitarian and Evolving Legal Pathways (HELP)Vietnamese ImmigrationAustralian Immigration: New Skills in Demand Visa
  • 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
  • Travel & Mobility Considerations: Situation in the Middle East
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Humanitarian and Evolving Legal Pathways (HELP)
  • Vietnamese Immigration
  • Australian Immigration: New Skills in Demand Visa

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
ContactCareersMedia
  • 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

Blog post

UK Creative Industries & Immigration: What the 2025 Policy Changes Mean

Senior Manager Sean Rhodes, Associate Jennifer Gray and Paralegal Mariel Arquero outlines how the United Kingdom's 2025 immigration policy changes will impact the creative industries.

Learn more

Media mentions

AAML: Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys

Senior Associate Carolyn Alvarez outlines US passport rules for minors to guide family law attorneys on immigration requirements.

Learn more

Blog post

Fast-track Visa Options for Technical Workers: Türkiye’s AMS Visa and Greece’s Installation Visa

Senior Manager Ben Morgan and Manager Mariana Da Encarnacao outline Türkiye’s AMS visa and Greece’s Installation visa as streamlined immigration options aimed at attracting technical talent to support national innovation and economic growth.

Learn more

Video

Regional Immigration Overviews 2025 | #MobilityMinute

Director Raj Mann shares an overview of Fragomen's newly released 2025  Regional Immigration Overviews, a supplement to the firm's Worldwide Immigration Trends Report.

Learn more

Video

A Guide to EU Visa Categories for Non-EU Nationals

Explore EU visa options for non-EU nationals, including Schengen, long-stay and work visas like the EU Blue Card. Find the right visa for your needs.

Learn more

Blog post

UK Partner Visa 2025: Is Cohabitation Still Required for Unmarried Couples?

Private Client Associate Amelia Haynes and Intern Zuha Malik explore whether living together remains a requirement for unmarried couples applying for a UK partner visa under the 2025 rules.

Learn more

Media mentions

Business Standard: 11 Million US Visa Backlog Crushes Indian H-1B, Green Card Dreams: Decoded

Partner Blake Miller discussed how US immigration processing delays may create challenges for work authorization, travel and workforce planning.

Learn more

Blog post

EES and ETIAS: Automation Meets Immigration Complexity

Immigration Manager Andreia Ghimis discusses how the EES and ETIAS systems aim to streamline immigration processes while addressing the complexities of automation.

Learn more

Fragomen news

Partner Marius Tollenaere Elected to the Executive Committee of the German Bar Association's Migration Law Working Group

Partner Marius Tollenaere is elected to the Executive Committee of the German Bar Association's Migration Law Working Group.

Learn more

Blog post

Policy Reform Proposal: Granting Automatic Employment Authorization to Spouses of Work Visa Holders in South Africa

Director Johannes Tiba explores the proposal to grant automatic employment authorization to spouses of work visa holders in South Africa.

Learn more

Media mentions

The National: UAE Golden Visa Explained: From Nomination to Investment and Who is Eligible

UK: Partner Haider Hussain clarifies that UAE Golden Visa applications must go through official government channels, warning against unauthorised fees and misinformation.

Learn more

Media mentions

Games Industry: What the UK Government’s Industrial Strategy and Immigration White Paper Mean for the UK Games Industry

Director Laurence Keir-Thomas outlines how recent changes to UK immigration and industrial policy may affect talent planning and hiring across the games sector.

Learn more

Blog post

UK Creative Industries & Immigration: What the 2025 Policy Changes Mean

Senior Manager Sean Rhodes, Associate Jennifer Gray and Paralegal Mariel Arquero outlines how the United Kingdom's 2025 immigration policy changes will impact the creative industries.

Learn more

Media mentions

AAML: Navigating U.S. Passport Applications for Minors Under 16: A Guide for Family Law Attorneys

Senior Associate Carolyn Alvarez outlines US passport rules for minors to guide family law attorneys on immigration requirements.

Learn more

Blog post

Fast-track Visa Options for Technical Workers: Türkiye’s AMS Visa and Greece’s Installation Visa

Senior Manager Ben Morgan and Manager Mariana Da Encarnacao outline Türkiye’s AMS visa and Greece’s Installation visa as streamlined immigration options aimed at attracting technical talent to support national innovation and economic growth.

Learn more

Video

Regional Immigration Overviews 2025 | #MobilityMinute

Director Raj Mann shares an overview of Fragomen's newly released 2025  Regional Immigration Overviews, a supplement to the firm's Worldwide Immigration Trends Report.

Learn more

Video

A Guide to EU Visa Categories for Non-EU Nationals

Explore EU visa options for non-EU nationals, including Schengen, long-stay and work visas like the EU Blue Card. Find the right visa for your needs.

Learn more

Blog post

UK Partner Visa 2025: Is Cohabitation Still Required for Unmarried Couples?

Private Client Associate Amelia Haynes and Intern Zuha Malik explore whether living together remains a requirement for unmarried couples applying for a UK partner visa under the 2025 rules.

Learn more

Media mentions

Business Standard: 11 Million US Visa Backlog Crushes Indian H-1B, Green Card Dreams: Decoded

Partner Blake Miller discussed how US immigration processing delays may create challenges for work authorization, travel and workforce planning.

Learn more

Blog post

EES and ETIAS: Automation Meets Immigration Complexity

Immigration Manager Andreia Ghimis discusses how the EES and ETIAS systems aim to streamline immigration processes while addressing the complexities of automation.

Learn more

Fragomen news

Partner Marius Tollenaere Elected to the Executive Committee of the German Bar Association's Migration Law Working Group

Partner Marius Tollenaere is elected to the Executive Committee of the German Bar Association's Migration Law Working Group.

Learn more

Blog post

Policy Reform Proposal: Granting Automatic Employment Authorization to Spouses of Work Visa Holders in South Africa

Director Johannes Tiba explores the proposal to grant automatic employment authorization to spouses of work visa holders in South Africa.

Learn more

Media mentions

The National: UAE Golden Visa Explained: From Nomination to Investment and Who is Eligible

UK: Partner Haider Hussain clarifies that UAE Golden Visa applications must go through official government channels, warning against unauthorised fees and misinformation.

Learn more

Media mentions

Games Industry: What the UK Government’s Industrial Strategy and Immigration White Paper Mean for the UK Games Industry

Director Laurence Keir-Thomas outlines how recent changes to UK immigration and industrial policy may affect talent planning and hiring across the games sector.

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.