A potential new administrative practice, whereby proof that skills were actually transferred by the ICT holder to a nominated South African citizen, has been requested by a number of South African missions. This has important implications for HR departments of corporates, as well as applicants for, and holders of, an ICT visa who wish to change their status.
Intra-Company-Transfer (ICT) Visa – Transfer of Skills Reporting
When applying for an Intra-Company-Transfer Visa for South Africa, one of the crucial documents to be submitted is the Transfer of Skills Plan. In this document, the skills which will be transferred from the foreigner to the local understudy should be described in detail. As part of the application, the name(s) of the local understudy/ies must be mentioned and ID copies added to the application of the foreigner.
Furthermore, the law does not oblige the employer or the foreign employee to report on the progress of such skills transfer to the Department of Home Affairs (DHA) or any other department. While most corporates ensure that skills are transferred, it is not clear which records must be kept, if reporting must be done and to whom, or what happens when the local understudy changes employers.
Practical changes for the Intra-Company-Transfer (ICT) Visa
It seems that the DHA is aware of the lack of enforcement of the law and is trying to address this issue through changing their administrative practices. We can only draw this conclusion out of incidents, since no official notice was issued. In one case, a mission in Central Europe issued a first ICT with the request that HR sends a progress report on the transfer of skills to the mission every six months. This request was not made a condition of the visa though, but requested in person. In another case, an applicant for a Critical Skills visa (CSV), who was on an ICT before, was asked to provide proof that the promised transfer of skills had taken place. In a third case, whilst applying for a General Work Visa, the applicant was asked to provide a copy of the actual Transfer of Skills Plan which was submitted with the previous ICT application.
For clarity, while the proof of transferred skills was always required when applying for a new / second, ICT Visa, it now also seems to apply to applicants who wish to change to a Critical Skills Visa, General Work Visa, or even when applying for a waiver of the Department of Labour recommendation.
As mentioned before, we are of the opinion that this could be the start of a broader change. In short, holders of an ICT Visa who wish to change their status to any other work visa, will be asked to prove to the DHA that the Transfer of Skills Plan was adhered to.
Recommendation
We therefore suggest to our corporate clients that proof of training sessions conducted by the foreigner are recorded and signed by the understudy and foreigner. Once a quarter, or at least twice a year, a progress report should be compiled, recording which skills were transferred or are in the process of being transferred. These documents should form part of the foreign national’s HR file, as well as that of the understudy.
Corporates who employ ICT Visa holders should ensure that the foreign national employee understands the importance of the transfer of skills and hold all parties accountable for regular training and the associated record-keeping.
For any further questions regarding the above, please contact our IBN team in South Africa.
Written by: Andreas Krensel
