ICT Tier2 long term staff partner to Tier2 general

[anujjaglan]

Hi All,

I have gone through various thread on this forum and got most my answers but still i have some open queries. Can anyone please help me with below mentioned queries on urgent basis

I'm currently in UK on ICT Tier 2 long term staff visa valid till feb17 and my wife is here on ICT Tier 2 long term staff partner visa (valid till Feb'17).

My wife has got job here and has joined couple of months back. I have below query:

Q1. As she has already joined the Job and her Employer (UKBA A Rated Sponsor for T2G) is ready to sponsor her so is it possible to change VISA from ICT T2 to T2 Genral? I have checked with some Lawyer and they mentioned that it's not possible until she resigns and join as a new employee. However reading other post in the forum i believe it's possible and she need to apply from her home country.

Q2. Her Employer is ready to provide CoS for Tier 2 general upto 3 years under ' switching immigration categories' category. Please confirm if this is correct?

Q3. If she applies for T2G visa from her home country and in case her T2G application gets rejected for any reason, then would her current dependent visa T2 ICT partner staff visa be still applicable? Would she be able to continue her current job without any problems?

Q4. As she is working for couple of months for the same employer so does her employer need to go for RLMT? She was recruited with help of 3rd party agency and that time job was open for more than a month.

Q5. Her company may not be posting any job again for the same position so is it going to be a problem to get the cos?

Q6. Do we have any scenario where CoS got approved but VISA application got rejected?

Appreciate quick response on this.

Many Thanks

[moonlight55]

Theoretically, its possible for her to switch to T2 general by applying for entry clearance from home country. However, its getting difficult for such cases to get approved due to "genuineness" of RLMT. Check this case:
http://www.immigrationboards.com/uk-tie ... 96580.html

Resigning or not resigning is not an immigration issue. It's how the organisation wants to do it. It she does not resign and apply for the visa, don't you think it will look like that RLMT was not genuinely conducted and it was planned upfront to get her selected for this job. It's how the case officer will see it.

If her T2 general application gets rejected, her old visa will still be valid.

Go through the case above and let us know if you have any questions.

[kashish]

So what's the best way forward in such scenarios? Apart from doing rlmt and retaining proof of number of applicants who applied and why they were rejected?

Also at what stage it is communicated to UKBA that the employee is already working for the organisation, is it while filing RCOS or while filling in Tier 2 general visa form?
Does resigning before going back to apply visa, makes the case more genuine?

[anujjaglan]

Hi Monlight,

Thanks for the case study and your answer. I still have some doubt.

Employer is saying that they will submit COS for Immigration change category and in that case no need of RLMT. Please advise if COS can be raised in this category for ICT T2 Dependent?

Section 27.7 (b), 28.4, 28.5 on below links are confusing me.

https://www.gov.uk/government/uploads/s ... d_v1_2.pdf

Section 28.4/5 Says:

Exemptions from the resident labout market test
28.4 This section sets out where you do not have to carry out a resident labour market test
before you can assign a CoS under Tier 2 (General).
Continuing to work in the same occupation
28.5 If the migrant is already working for you and they need to extend their leave to continue
working for you in the same occupation, you do not need to carry out a resident labour
market test.

Section 27.7 (B) Says:

All applications by migrants who are applying from within the UK, including those
extending their stay in Tier 2, changing employer, or switching immigration category.
The only exception to this is where the migrant switching into Tier 2 (General) is in the
UK as a dependant of another migrant who was last granted leave under Tier 4 and
will be paid less than £155,300. These dependants do count towards the limit and you
must apply for a restricted CoS for them.


Could you please advise and Confirm if RLMT is must in our case?

Regards,

[gag285]

Hi Monlight,

Thanks for the case study and your answer. I still have some doubt.

Employer is saying that they will submit COS for Immigration change category and in that case no need of RLMT. Please advise if COS can be raised in this category for ICT T2 Dependent?

Section 27.7 (b), 28.4, 28.5 on below links are confusing me.

https://www.gov.uk/government/uploads/s ... d_v1_2.pdf

Section 28.4/5 Says:

Exemptions from the resident labout market test
28.4 This section sets out where you do not have to carry out a resident labour market test
before you can assign a CoS under Tier 2 (General).
Continuing to work in the same occupation
28.5 If the migrant is already working for you and they need to extend their leave to continue
working for you in the same occupation, you do not need to carry out a resident labour
market test.

Section 27.7 (B) Says:

All applications by migrants who are applying from within the UK, including those
extending their stay in Tier 2, changing employer, or switching immigration category.
The only exception to this is where the migrant switching into Tier 2 (General) is in the
UK as a dependant of another migrant who was last granted leave under Tier 4 and
will be paid less than £155,300. These dependants do count towards the limit and you
must apply for a restricted CoS for them.


Could you please advise and Confirm if RLMT is must in our case?

Regards,

The exemption applies if you are extending your leave e.g. you are in Tier 2 with the employer and extending the time on the leave. Your case is switching from PBS dependent to Tier 2 main applicant so an RLMT is definitely required.

As far as RLMT is concerned, I do not see why the case moonlight mentions should serve as an example for grounds of refusal. If you have read the refusal grounds on that post, the RLMT process was jeopardised by not considering any applications for the post ( the case worker got suspicious not finding any other applicants for a skill readily available in the job market) . So even if you are working for an employer and an RLMT is rightfully conducted, and no other grounds of refusal exist, you should be able to switch your visa. The RLMT process relies on sponsors submitting proof of the process so the UKVI has to rely on what the sponsor submits in line with the policy unless offcourse there are obvious reasons to be suspicious.

[moonlight55]

Agree with gag. Employer just need to conduct RLMT as its defined.