Tier 2 visa extension application refused twice.

[Amala]

I am working as a NHS nurse under Tier 2 work permit and applied for a visa extension on April 19th 2017. My current visa expiry date is 8 August 2017. My application was refused on the grounds that it was made more than 3 months before the start date of my proposed employment. I made another extension application on June 17th which was refused again. The reason stated is as follows:

Your certificate of sponsorship indicates that your sponsor has not performed an appropriate resident labour market test as defined in Appendix A of the immigration rules.

You do not qualify for any of the exemptions in order for you to be awarded points for sponsorship without the need for your sponsor to show they have performed a test of the resident labour market.

The reasons for this decision are detailed below:

You were last granted leave to work as a theatre practitioner under the standard occupational classification code 2219 but you have applied to work as registered staff nurse under standard occupational classification code 2231 for the NHS Trust hospital. Therefore you will not continue to do that same job you are doing or intending to do when last granted leave.

To be awarded points for a job that passes the Resident labour market test under sponsorship your sponsor should indicate on your certificate of sponsorship that they have met the requirements of the Resident labour market test as defined under appendix A of the immigration rules in respect of the job you wish to undertake.

Appendix A and the codes of practice state that the job you wish to undertake should have been advertised in the job centre plus and universal Jobmatch and that the certificate of sponsorship must contain the Jobcentre Plus or Universal Jobmatch vacancy reference number.

Although you are certificate of sponsorship indicates that your sponsor advertised the job you wish to Undertaker through the Jobcentre Plus Universal Jobmatch they did not include the vacancy reference numbers. Your sponsor has also confirmed to the home office that they have been unable to find any evidence that the job you wish to undertake has been advertised through the Jobcentre Plus or Universal Jobmatch. Therefore in line with the appendix A of the immigration rules we have been unable to award points for sponsorship.

I understand from this refusal letter that some kind of error occurred while my employer applied for my CoS number. I'm actually a staff nurse registered under NMC working in Operation Theatre with a valid PIN number but what I understand now is that the occupation classification code with which I'm already granted leave is different. So which is the better option now:

Should I apply for a new work permit under the same employer with the title Staff Nurse and the appropriate occupational classification code for that or can I apply for another extension application with a new CoS number after my employer gives me a new one.

[Djsuccess]

I guess your sponsor did not understand the implication of changing your SOC code. If you are still doing the same job then ask your sponsor to issue you with another Cos using the same SOC code used in your last granted visa. In this case SOC code 2219 for a theater practitioner. It is also possible that your job title has changed but could still remain in the same COS.

There wouldn't have been any need to conduct RLMT if your sponsor had used same SOC code because you are just extending your visa.

However, if you have a new role different from what you were doing before, then there might be a change of SOC code and obviously need to carry out a proper RLMT.

So the two issues are your SOC code and RLMT. Your sponsor has to read the sponsor guidance and know what to do, as it appears they don't really know what they are doing.

[Amala]

My sponsor has informed me that they had phoned the home office regarding this error. They told home office that since I am a staff nurse I am allowed to work in any department in the hospital. Since I am working in the Operation theatre, I can be called a theatre practitioner but I am a registered nurse at the same time. Basically the employer meant that both jobs are the same and I can be called either staff nurse or theatre practitioner. My employer told me that home adviced them that I should go for an administrative review stating this reason. But I'm not sure how successful it will be. Anyway I am going for an administrative review as per their advice. In case the administrative review is not successful am I allowed to make another application for extension with a new CoS number under the previous occupational code? If I can, will I be able to go for a premium visa service? Also how soon after the administrative review refusal I should make the new application since my present visa has already expired last month. Even if I make a new application wil I be allowed to work since my present visa expired?

[Djsuccess]

I will advise you make a fresh application using your old COS. You're unlikely to have a successful admin review. The Soc codes are assessed regularly by the Migration Advisory Committee I believe. And I am sure they have a reason for having a different SOC code for theatre practitioners and general registered nurses. Your application was refused because you applied with a new COS and as in the rule, new COS will trigger RLMT. So your application was treated like a new application rather than extension in the same job.
The appendix J clearly states the job description and likely job titles for each SOC code. So the case worker has not made any mistake in rejection your application because the RLMT used for the application was not properly done.
To make things easier for yourself, you should make a fresh application using your old SOC code. I'm not sure if this will make any difference since your old visa has expired. So I'm not sure if it will still be treated as extension.

You can go for the admin review to try your luck but make sure your sponsor has a cos to assign in case the review is not successful as you will only have a short time to make another application after the review.
I also think that failure to get a successful admin review will mean that your next application will still be treated as a new application and would require to pass the RLMT again.

It appears your sponsor are insisting on using the theater practitioner title for you. So I believe you will need a RLMT anyway.

And yes, you can use the premium service for your new application.

All the best.

[Amala]

If my administrative review is also refused can I ask my employer to make a new tier 2 application for me with the occupational code staff nurse and also apply for a new CoS with that?
Since staff nurse comes under shortage occupation list can they issue me a work permit without conducting a Resident labour market test? What are the chances for me to get a new visa if I go this route?
I heard that after getting the result for administrative review you have only 14 days to make a new application. Is this true?

[CR001]

I heard that after getting the result for administrative review you have only 14 days to make a new application. Is this true?

Yes, you only get 14 days to make a new application. If your AR is refused, your section 3C protection ends, you cannot work etc. You would need your application for another Tier 2 to be successful for the overstay to be ignored for ILR.

AR is for when HO has made a mistake, which doesn't appear to be the case here.

[Amala]

I'm very much worried now. Due to my employer messing up my application I'm facing so many problems in spite of me being here legally. I am going to assume that my administrative review will come back as negative. In the mean time I have to see what can be done further. My employer is of no help because they are telling me to wait for the administrative review result. I asked my employer regarding making a new work permit as staff nurse. But they told me I have to go to nhs jobs website and apply for the job since they cannot lie to home office that they have given me a new job as staff nurse because my current visa is as theatre practitioner. Then only they will be able to issue me a new work permit. I don't know wether all this is possible within a short window time of 14 days.
What I want to know is:
Am I eligible to make a new visa extension application under my previous occupational code ( theatre practitioner) and new CoS after a negative administrative review result or will that be considered as a new application and the employer has to do another RLMT for me. My employer told me as long as its an extension they don't have to do a RLMT.
The second option is to apply for a new work permit as staff nurse and make a fresh application. I read in the government website that for shortage occupation they dont have to do a Resident labour market test. Since staff nurse is a shortage occupation they just need to apply for a new CoS. I think it works like this.
Would anyone be able to tell me which option is better for me to get a visa and not be an overstayer.

[Djsuccess]

Don't wait for AR before taking action. You might eventually need to make a new application. Except you're applying for shortage occupation, RLMT will be required and you don't have the time.

[jaymin123]

HI

my first extension application refuse on based on number of hours, I show my salary £32 800 on 40 hours per week and they required this salary on 39 hours per week, my previous visa is still valid so i am making another application, to make changes in COS of 39 hours per week and £33000 salary.

what do you think?

[CR001]

HI

my first extension application refuse on based on number of hours, I show my salary £32 800 on 40 hours per week and they required this salary on 39 hours per week, my previous visa is still valid so i am making another application, to make changes in COS of 39 hours per week and £33000 salary.

what do you think?

Kindly refrain from tagging your question onto another members topic. It is considered rude and creates confusion when members respond.

You have a topic where you have asked your question, please keep your queries in your own thread.

[Amala]

Don't wait for AR before taking action. You might eventually need to make a new application. Except you're applying for shortage occupation, RLMT will be required and you don't have the time.

I got a letter from the home office that my application for administrative has been successful. It states they think the original case worker made an error in the decision and the application will be reverted back to the original case worker for reconsideration. It also states.that I will be eligible for another administrative review if the visa is again refused.
My doubt is why the case is reverted back to the original case worker since he is the one who rejected my visa extension application. What are the chances of him again rejecting my visa even though the administrative review is successful.

[Djsuccess]

What are the pieces of evidence you provided at the AR?

[Amala]

I gave evidence that even I am a registered nurse with a valid PIN number. I am.working in Operation Theatre and called as a theatre practitioner but that does not mean that I am not doing the role of a nurse. A nurse is entitled to work in any department in the hospital. So theatre practitioner and staff nurse being under two different occupational codes doesn't make any difference in my case. So home office is making a misinterpretation that I cannot extend my visa as staff nurse.

[Djsuccess]

Your explanation makes sense. I hope the caseworker will not still refer to the issue of the different SOC code.
I wish you all the best.

[Amala]

I got my visa extended as a theatre practitioner. My visa is valid till August 2019. I want to apply for ilr this year. The issue is I won't be able to do that in my present visa since my annual income is less than £36000. The other option I have is to find a new job with a new employer as staff nurse but I have to pay money again. Do you think I can apply for ilr in my present visa if I give a letter from my employer to the home office proving that I am a staff nurse even though my present job code is theatre practitioner. Or is my only option applying for a new job and change my job code to staff nurse.

[Djsuccess]

I got my visa extended as a theatre practitioner. My visa is valid till August 2019. I want to apply for ilr this year. The issue is I won't be able to do that in my present visa since my annual income is less than £36000. The other option I have is to find a new job with a new employer as staff nurse but I have to pay money again. Do you think I can apply for ilr in my present visa if I give a letter from my employer to the home office proving that I am a staff nurse even though my present job code is theatre practitioner. Or is my only option applying for a new job and change my job code to staff nurse.

If your current SOC code is not under shortage occupation or PhD level jobs, a letter from your employer will not be enough. What is your current salary and weekly working hours?

[Amala]

No my current job code is theatre practitioner which is not under shortage occupation list but its due to my employer mistake that im in this job code. Actually I am a staff nurse which comes under shortage occupation list. My annual income is £26000 and 37.5 hours. I can change job under the same employer or new employer and make a fresh application to change my job code to staff nurse. But in the current visa if I apply for ilr with a letter from my employer saying that even though my job code is theatre practitioner im a staff nurse and as a nurse im entitled to work anywhere in the hospital. I got my current visa extension like this. My employer called home office and let them know both job roles can be done by me. Then home office gave me visa extension which they previously rejected due to the same reason.