The Immigration Act Provides that an application for a Critical Skills Work Visa shall be issued to a foreigner for a period not exceeding 12 months where an applicant does not have an employer in South Africa. This visa is renewable provided that the applicant provides proof of employment within 12 months of being issued with the visa. This seems simple enough however many have found this to be the contrary. Many individuals who are issued with 12 months’ Critical Skills Visas find themselves unable to renew their visas despite having secured employment. It is not clear how one satisfies the requirement that they have secured employment and the information provided for by the VFS offices is incomplete and often applications are rejected for failing to comply with all requirements.
The golden rule when trying to understand immigration in South Africa is to appreciate that it is a function of law. Only the Act can give proper direction in terms of any application for a visa. All other material available is prepared from the Act and where there is a conflict with the Act it is the Act that prevails. With that said let us look at the relevant provisions.
Section 10(7) provides that subject to this Act, the Director General may, on application in the prescribed manner and on the prescribed from , extend the period for which a visa contemplated in subsection (2) was issued . This section gives a clear indication of what must be done when applying for the renewal of a visa, it must be done in the prescribed manner which means as directed by the Regulations. Regulations 9, 10(8) and regulation 18 prescribe the requirements for an application to renew, in this case, a Critical Skills Work visa. Without going into too much detail on the individual requirements I wish to highlight that when lodging the application applicant must comply fully with the requirements. Simply put you must supply all the documents you supplied in the initial application and add the contract of employment and employer undertakings.
A closer look at this application will reveal that submitting proof of employment is actually an application for a Change of Conditions and not a renewal per say. The applicant is actually applying to have the condition to take up employment with the new employer be endorsed on to the visa. Having an employer is the key to unlocking the five years on a Critical Skills Work Visa.
The applicant will also have to show that he or she remains employed is within the field of Critical Skills that the applicant possesses. This is often tricky as these skills often overlap into different industries. Where this happens it often creates a misalignment between the Skills category being applied for and the industry of the employer. An example would be a person who applies as Business Analyst without an employer and is issued with a visa for one year but then is employed by a large retail chain as a Business Analyst. On renewal of the visa the application is rejected because the employer is not with the “Business process outsourcing industry”. This is a common reason given and I may be wrong in the following statement but I will make it nevertheless. There is no such thing as a business process outsourcing industry and in the context of the Critical Skills Work Visa the term is used as a classification of education subject matter and not an indication of industry. However, this does not seem to register with the powers that be.
The point I wish to make here is that an application for a renewal or change of conditions under the critical skills visa category is one that should be approached carefully and not taken to be a foregone conclusion where one already holds the visa. There are certain nuances at play when lodging an application within South Africa and enlisting the aid of someone with the relevant experience will go a long way to avoid pitfalls disappointments when it comes to the lodging of application and subsequent results.
Munyaradzi Nkomo
Lead immigration specialist at Strategies Migration Services SA
Email munya@immigrationspecialists.co.za
Cell: +2774 337 0269
www.immigrationspecialists.co.za