GENERAL WORK VISA: LABOUR CERTIFICATE VS WAIVER

One of the biggest headaches of applying for a General Work Visa is arguably obtaining a requisite requirement by supplying a certification from the Department of Labour (“DoL”) in order to prove that the position in question and that have been offered to a foreigner, is unable to be fulfilled by a South African similarly skilled.

The amendment of the Immigration Act in 2014, saw the introduction of a DoL Certificate as a necessary prescribed requirement for a General Work Visa application and subsequent renewal applications, which has caused many disappointments for foreigners and their future South African employers.

Since the introduction of the certification from the DoL, applicants and South African employers have been opting for a lesser known means, offered by the Department of Home Affairs (“DHA”), to surpass such a certification, and especially where urgent project work is required, by applying for a waiver letter to the DHA in order to substitute the DoL Certificate.

Accordingly, and in terms of section 31(2)(c) of the Immigration Act, the Minister may, for good cause, waive any prescribed requirement or form. A waiver (application) is a formal written request to the DHA to set aside certain prescribed requirements for a visa in any given category, in this case, the General Work Visa. This means that companies or individuals may, for good cause, be exempted from certain prescribed requirements.

DoL Certificate versus DHA Waiver

The DoL Certificate is a recommendation to the DHA as to the suitability of the candidate to the position for the company and/or the company’s compliance with the relevant employment services acts whilst employing foreign nationals. Such an application to the Department of Labour, require proof from the company that typical recruitment processes have been followed when arbitrating applications. These would inter-alia, and typically include, copies of Curriculum Vitae’s and subsequent interview notes of the South African candidates that may have been identified suitable for the position.

Conversely, a waiver application requires the relevant supporting documentation and motivation as to why the foreign national has been chosen for the position as opposed to a South African that hold similar skills and qualifications.

Now, this option appears much more appealing and effortless than that of a DoL application, which is not necessarily incorrect, however a waiver application is often most considered based on the merit and credibility of both the foreigner and the South African company, and it must not be misused due to the ‘considered’ relaxed requirements.

It is therefore important that should a waiver application be considered, that the proper motivation is supplied and outlined within such an application by covering the required specifications by the DHA.

Once a positive waiver outcome is received it is submitted with the other documented necessary to process a general work visa application.