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Elon Musk’s ‘grey area’ US visa balancing act has resonance for immigrants to SA

3 Dec 2024

Having a valid work visa in South Africa does not constitute freedom to work, but rather a narrow authorisation to work for a specific employer.

On 26 October 2024, 10 days before the 60th US presidential elections, The Washington Post, owned by Jeff Bezos’ Nash Holdings, broke an exclusive report titled “Elon Musk, enemy of ‘open borders,’ launched his career working illegally”.

The report focused on Musk’s immigration status in the mid-1990s when he moved from Canada to California to study for a PhD at Stanford University. In 1995, Musk, with his brother Kimbal and friend Gregory Kouri, launched Zip2, his first tech start-up and the first of his many entrepreneurial successes, in Palo Alto.

According to US immigration experts cited in The Washington Post report, at the time Musk was in contravention of his immigration status as he was not allowed to work or conduct a business while on a study visa for a course of studies for which he ultimately never formally enrolled.

Although Musk denied the claims by stating “I was on a J-1 visa that transitioned to an H1-B. They know this, as they have all my records. Losing the election is making them desperate”, it appears that some of the receipts The Washington Post could count on for its report came directly from Musk and his brother Kimbal’s own statements over the years.

While Kimbal was open about it, stating in 2013 that “we were illegal”, even Elon, back then, conceded that immigration-wise, at best, they were in a legal “grey area”.

In South Africa

Distancing this quarrel from its US political bipartisanism and from a Musk-Bezos scoring match, and focusing on a strictly South African immigration perspective, the biggest takeaways relate to identifying and acknowledging that a “grey area” exists, and the dire consequences of becoming an illegal foreigner.

In terms of the South African Immigration Act, an illegal foreigner is “a foreigner who is in the Republic in contravention of the Act and includes a prohibited person”.

Illegal foreigners may be ordered to depart and are otherwise subject to arrest and deportation. As the conditions attached to any visa are binding, conducting an activity other than that which a visa allows is deemed a contravention in terms of the Act.

The Act also lists “Offences” (other than “Administrative offences” as per s50) and these extend to “anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years” [per s49].

The grey area

In South Africa, to date, many unsuspecting foreigners, as was once upon a time perhaps also young and ambitious Elon Musk in the US, are confused, ill-informed and oblivious about that same grey area and sometimes fail to understand the consequential gravity of non-compliance with their visa conditions.

Work visa holders who hold valid visas to work for employer A, for instance, and want to take up a position with employer B, may not realise that this change must be authorised and approved through an inconvenient full fresh application disguised under the simplistic terminology of a “change of condition” application.

A valid work visa in South Africa does not constitute freedom to work, but rather a narrow authorisation to work for a specific employer.

Rarer appear to be instances relating to contraventions made by study visa holders who remain actively enrolled for studies yet change institutions as, over the years, learning institutions (and differently from employers) have been more alive to, and cognisant of, their obligations in terms of the Act by implementing their due diligence more frequently.

Said obligations include: notifying the director-general (DG) within seven days of the student’s failure to register and reporting to the DG within 30 days should the foreign student no longer be registered. The study visa of a foreign student who fails to enrol or who ceases his/her studies is null and void in law and the foreigner who continues to reside in South Africa on such a visa is therefore considered an illegal foreigner. The latter situation is on point with the allegations made against Elon’s status in The Washington Post report.

Another salient example relates to spousal-based visa holders who, with dismay upon the breakdown of their relationships, discover that their visas may still be valid on paper, but are considered null and void in law. The breakdown of the relationship constitutes a contravention of the primary and fundamental condition of their visa status, which is literally that of residing with their now ex-spouse. This extreme repercussion often compels individuals to remain in abusive relationships for fear of having to depart South Africa.

Constitutional watchdog

This imbalance of power to which spousal visa holders have long been subjected is even more evident and alarming in instances where the foreign spouse is also the parent of South African children born of that same union.

This was a major legal lacuna that the late Gary Eisenberg identified and took to heart by challenging its constitutional invalidity. On 4 December 2023, the Constitutional Court handed down a landmark unanimous judgment providing for a relative visa with working rights for parents of South African citizens or permanent resident minor children, and for the ability of parents of South African children or permanent residents to change status from within South Africa.

The so-called “parental visa” was ultimately created by recognising the child’s best interests to be paramount, and by warranting an immigration safehold to foreign parents regardless of the status of a spousal relationship.

This judgment and its widespread ramifications form part of Gary Eisenberg’s lasting and unparalleled legacy, and contribution to the democratisation of South Africa’s immigration process, a transformation that is still far from complete.

On deportations

Contrary to a widespread misconception, illegal foreigners are not just those who have illegally entered the country and are undocumented, but also, perhaps disproportionally, any foreigner who contravenes the Act while in the grey area of non-compliance. It seems evident that a blind application of rules by the police and the Department of Home Affairs may well be found, on closer inspection, to be too harsh – if not unconstitutional – in certain instances.

In the past few months, the temperature surrounding illegal foreigners and deportations has increased to unprecedented levels. Raids and arrests across the country in joint operations by SAPS, Home Affairs and the departments of employment and labour have been reported and have often been applauded, tickling once again the South African xenophobic underbelly that cloaks itself behind freedom of crazed speech.

Hospitals are also being raided and undocumented patients removed. The disconnect from the constitutionally enshrined principle of ubuntu is disturbing.

As Home Affairs Minister Leon Schreiber proudly reported that 19,750 illegal foreigners were deported between April and August at the exorbitant cost of R52-million, the Scalabrini Centre of Cape Town, with Lawyers for Human Rights, obtained an interim order in the Western Cape High Court stopping the deportation of any person who has indicated they intend to apply for asylum.

Perhaps, unsuspected by many, South Africa is one of the most prolific deporting nations globally, deporting more people per capita than even the US and Australia. Minister Schreiber’s spokesperson Duwayne Esau stated “we are now on track to outperform last year by a full 50% when there were 39,627 deportations over 12 months”, noting a 164% increase from 2022/23.

Simultaneously and worthy of mention, the Scalabrini Centre produced an eye-opening, factually accurate documentary titled On the Line. The documentary digs deep into the notoriously human rights-abusive deportations in South Africa in its quest to find alternatives to the detention and deportation system. The documentary premiered in Cape Town in late August and will be screened internationally in the coming months.

The in-between: calling again for an amnesty

In light of the persisting issues surrounding the unaccounted real numbers of illegal foreigners, the porous borders, the human rights violations carried out with the mass deportations, and the corruption within the department, and echoing Gary Eisenberg’s voice, I recently called for a well-co-ordinated and well-informed amnesty with specific census objectives of the illegal population as the only effective solution, and to “avoid running dangerous witch hunts that only lead to bribes and fraud or, even worse, human rights violations”.

The so-called grey area pertains to each individual and not to a generic classification. Skills are as valuable as work, personal and social ethics. In simple cause-and-effect terms, the more restrictive an immigration regime is in conjunction with geographical, socioeconomic and historical factors that attract migrants to a country, the higher the number of illegal foreigners will be and the more sophisticated the level of fraud.

A change to the causal pattern, such as an amnesty and a special exemption, could result in a more cost-efficient manner of resolving this crisis. Unfortunately, this is not on the Government of National Unity’s agenda, notwithstanding the fact that some parties, including the DA, have previously endorsed a similar proposition while in opposition.

Love him or loathe him, looking back at what Elon Musk has created and built from his early days, even while balancing precariously between visas and borders, it is undeniable that his ambition and vision have uniquely affected America’s industry and economy – and that of the world.

The grey area stands in between. Nothing, especially in the rainbow nation, should be only black or white. DM

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