In this article I wish to explain what the recently published Employment Services Amendment Bill of 29 May 2026 means for employers and where potential contradictions with the Immigration Act and Immigration Regulations exist.
South Africa: Immigration Compliance Is No Longer Just a Visa Check
For many South African employers, foreign national hiring has traditionally been managed as a visa issue: check the visa, keep a copy, move on. That approach is no longer good enough.
The existing Employment Services Act of 2014 already places labour law duties on employers who hire foreign nationals. The Employment Services Amendment Bill goes much further and, if enacted in its current form, moves foreign national employment into a much more active compliance environment with labour market testing, skills-transfer planning, employment quotas, record keeping, inspections and potential high Labour Court fines.
Current Immigration Obligations
The starting point remains the Immigration Act. An employer may not employ:
- an illegal foreign national.
- a foreigner whose status does not allow employment by that employer.
- a foreigner working in a capacity that is not permitted under their status.
In practice, this requires more than checking whether a visa is valid. Employers must review the visa type, employer alignment, occupation, expiry date, and any conditions attached to the visa. Promotions, role changes, and transfers between entities can create risk if the visa conditions are not aligned.
The Immigration Regulations already require employer undertakings, including responsibility for deportation costs, ensuring passport validity, and notifying Home Affairs of changes to employment.
Employers must also keep records including passports, visas, capacity of employment, earnings records and job descriptions.
This highlights that labour legislation does not sit neatly alongside the immigration framework.
What the Bill May Change
The Employment Services Amendment Bill introduces a more structured compliance framework under a new Chapter 3A, Employment of Foreign Nationals. While some provisions reflect existing immigration requirements, the Bill significantly expands the scope of employer obligations.
The Bill introduces a broad labour market expectation. Employers may be required to satisfy themselves that there are no suitably skilled South African candidates before recruiting a foreign national. This resembles the historic labour-market test, but it does align comfortably with the current points-based system for general work and critical skills work visas.
Under the existing framework, Home Affairs now assesses applications on a 100-point framework, with factors including critical skills, qualifications, salary, experience, language, and trusted-employer status. If the Department of Employment and Labour separately requires a local-skills search for all foreign appointments, employers may face two overlapping gateways, each controlled by a different department. Most importantly, this additional requirement may undermine the purpose of the point-based system, which is designed to attract skilled foreign workers in a clear and defined way.
In the new section 12A (2c), the Bill would introduce a general requirement for a transfer of skills plan. While current Immigration legislation limits this requirement to Intra-Company Transfer visas, the proposed change would extend across any work visa category. Potentially including a short-term work visa in terms of section 11 (2) of the Immigration Act.
The Bill does give the Minister of Employment and Labour the right to exclude certain employers from such a requirement. Still, while I know that the Minister of Home Affairs tries to use Immigration to grow the economy, the interest of previous Ministers of Labour was to protect existing employees.
A further significant development is the proposed introduction of a quota system under section 12B, which South Africa currently operates but which the Immigration Act does not provide for. The Bill gives the Minister of Employment and Labour the right to introduce sectoral, occupational or even national quotas. If quotas are applied too broadly, they could undermine the purpose of the critical skills visa route and the 100-point framework.
Finally, the amendments introduce materially higher financial penalties for non-compliance, with potential fines of up to ZAR 100.000 for the first offence and ZAR 200.000 for a second offence within three years, and a maximum penalty of ZAR 1 Million or 10% of turnover. These penalties are materially higher than those currently set out under the Immigration Act.
The practical response is not to stop hiring foreign talent. That would be commercially short-sighted. The better response is governance.
Practical Steps for Employers
The response is not to reduce international hiring, but to strengthen governance. Employers should:
- should maintain a foreign national register
- verify visa conditions before appointment and at every role change
- track visa expiry dates
- retain records for at least the required period
- document the rational for hiring foreign nations
- keep evidence of recruitment efforts and skills requirements
- evidence of the skills needed and skills transfer, where applicable.
Compliance Risk is Increasing
The direction of travel is clear: South Africa still wants skills, investment and lawful foreign employment, but expects employers to demonstrate that they do not undermine local labour protections. In this environment, good immigration compliance is not paperwork. It forms part of workforce risk management.
Written by Andreas Krensel, Senior Director, Africa and Europe