Marisa Jacobs, director at leading immigration firm Xpatweb, said that the Department of Labour (DoL) issues a certificate to employers who can prove that they are unable to find suitably qualified or skilled local candidates for a position, requiring an experienced foreign national to fill the role instead.

This certificate, Jacobs said, is a prescribed requirement for a General Work Visa application issued by the Department of Home Affairs to allow foreign nationals 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.”

Waivers 

The Immigration Act allows the minister of Home Affairs to waive any prescribed requirement or form for ‘good cause’ to get around this long wait time.

“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 a good cause can be demonstrated on why a foreign resource is suitable for a vacancy,” Jacobs said.

She noted that not all foreign nationals will be considered for the waiver, and it is only those with skills that are scarce in the country – and the employer who can demonstrate the economic benefit of such a resource to the company and the economy in general – who are considered.

“Typical roles that are successfully considered for a waiver are those that are highly specialised and senior, 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.”

Roadblock

Persons who have submitted waiver applications are expected to be disheartened as recent developments indicate that these applications are likely to be rejected, said Jacobs.

“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 the Department of Home Affairs has made the decision to redirect waiver applications to the Department of Labour for assessment.

“Where a worker has applied for a waiver, 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.”

She said that those who want to apply to waive the DoL certificate are advised to reconsider their application before submission.