There has been much confusion over the Intra company transfers since the new regulations were implemented in May 2014, in particular the ability of applicants who were previously issued 2 year intra company work visas and the new regulations allowing for a 4 year application.
Below we look at the salient points of the Intra Company Work Visa
Crucial elements to note for new Intra Company Work Visa applications
1. An application can only be made where the person being transferred to South Africa has been employed by the foreign company for a period equalling at least 6 months.
2. The validation of the relationship between the foreign company and the company in South Africa is paramount – it strictly needs to be a branch, subsidiary or affiliate relationship.
3. The employee who is being transferred to the South African branch, subsidiary or affiliate must undertake the transfer of skills to a South African Citizen or Permanent Resident.
4. Intra company transfers may not be renewed, they are viewed as fulfilling a temporary need.
5. While the newest Immigration Regulations support that Intra Company Transfer, as a Section 19 work permit, may be considered towards permanent residence internal debate between stakeholders and the Department of Home Affairs have been noted which may result in a review of this Regulation.
Extending an existing Intra company work visa
This has been a tremendous bone of contention of the last months with logic saying that those holding a 2 year intra company work visa should be able to extend by 2 years, in effect topping up their existing visa to the new 4 year period.
Several missions adopted the same common sense approach, unfortunately several did not. This resulted in some people getting rejections and others being accepted purely based on where the application was made.
Obviously this situation was untenable and we have made various submissions to the Department of get a clear ruling on this.
We are pleased that a Gazette was signed off on the 27th October and distributed on October 29th that has at last clarified the matter.
Key points to note about extending an intra company work visa
It is essential that the employee was employed for at least 6 months abroad before their original intra company work visa was received – the fact that someone may already hold an intra company transfer does not negate this requirement.
The relationship between the transferring companies (namely branch, subsidiary or affiliate) should be ratified – this has been tightened up in terms of the definition of what is acceptable and once again the fact that someone may have been transferred under an intra company transfer before does not negate this requirement now.
The directive clearly states that applications can be made for up to 4 years – maybe we are sceptical but we expect some issues with this as missions (a) have to change their stance to now accept these ‘extension applications’ and (b) that some may try to take the view that a 2 year extension is more appropriate bringing the total to 4 years.
The one big negative is that applications must be made in the home country and not here in South Africa. One can only assume that the DHA has taken the view that the regulations dictate that the intra company visa is not renewable and is therefore to be treated like a new application. As the immigration regulations dictate that new applications must be made abroad the intra company work visa is being treated as such for submission purposes.
Whilst this makes no sense as the applicant is clearly here in South Africa and a return home makes the process cumbersome, wastes time and incurs unnecessary expense, their home country is deemed as the place where it will be the most appropriate route.
We encourage all employers with staff on intra company work visa to reach out to our Immigration consultant as soon as possible so we may advise you on the most appropriate way forward.
For more information you can contact your existing Immigration Consultant or:
Cape Town + 27 (0) 21 424 2460
Johannesburg +27 (0) 234 4725