Tier1(dep) to Tier2(G) after 6 Apr 12-a bit of confusion

[Taurus2012]

Hi

I am currently on Tier1(dependant) visa and working as a team lead in an IT org drawing £48000. Due to certain constraints it looks I may have to switch to Tier2(general) visa soon (looks likely my hubby will not score points for Tier1 renewal).
My organisation, though is currently not Tier2 sponsor (registered) but they are willing to do so for me as they want to retain me, for long. I have been working for them for over 14 months, at the same salary.
Although I have read the new Tier2 guidelines applicable after 6april 2012, still I have a few queries, if someone could answer:

1. Because I am on tier1(dep) I think it is certain I will not be able to switch to Tier2(G) in country and will have to go back to India while my Tier2(G) is in progress? Right? (I am answering myself!). But how long will my employer take to register as a new Tier2 G sponsor? Funny enough, my employer is asking me these questions as they have not dealt with such a case before but are taking an exception. They want to continue 'using' me till my Tier1dep is valid and want to minimize time I am out of country.

2. Once they get registered - should they apply for a restricted CoS licence or unrestricted (and how many). Also, what is probability that Tier2G will be granted to me while in India - given I have worked for this employer over 12 months and on a high sal?

3. Do I have to go thru LMT test - as I have been employed with them for over an year - and simply switching from tier1dep to Tier2 G? Wht is probaility that the test will be successful (given the fact they 'want' to hire me and doing this only to retain me) If this is very difficult - I may not ask them to do so...to waste their or my time. hat other option I have?

4. Assuming I stay with them for looong- beyond the first 3 years CoS and stay on similar £48K+ salary - will I be able to extend visa beyond 3 yrs to get an ILR after 5 years or cooling off period will be applicable in my case?
I know I will be constrained to work for one employer for 5 yrs, but Tier1G not in sight, this is only option- to perhaps give stability to me, employer and possibly ILR?

Thx...

[manci]

Hi

You are asking lots of questions, here is the answer to just one.

It sounds a bit worrying that your employer (and prospective sponsor) does not know about sponsoring migrant workers and getting a sponsor licence.

Here is the UKBA guidance on sponsorship. It is a 110 page document, see in particular pages 10-17:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

You will see that this is a fairly longwinded process. First the preparation of the application for the sponsor licence, including the collection of documents to be submitted, then the processing time UKBA will take over it. You can check current processing times for Tier 2 sponsorship applications by ringing 0300 123 4699.

Hope your employer wants you badly enough to go through this process!

[Taurus2012]

Manci - thx for the reply. Yes I was aware of the doc you mentioned on the website and O had fwd the same to them the day before (to the HR) but they seemed overwhelmed and queried me re the few questions I posed (viz. going back to india etc)- and asked me to come back with those answers before they proceed.

I did try to go thru that huge doc and thus got some reps, but was confused in some viz:

1. Do I have to go thru LM test given I have been working with them for over 12 mnths and at a sal of 48K
2. Whether they have to issue a restricted or unrestricted cos. I understand if I have to go thru LMT then it is restricted else unrestricted.
3. Probability of me getting tier2 stamped, after my employer going thru entire registration process and then allowing me to goto india. Good part as both me and they think is that it should be seen as a continuation of current employment as I am just switching tier1D to tier2G even if it is out of country.

YES they want me badly, hence are concerned abt timelines (I have 3 months on my Tier1D visa) and also whether the'd have to go thru LMT test etc or can straighaway hire me.

Thx again, if you can answer 1, 2, 3. Hoping for the best and hope I am able to continue with my job...Kicking myself as was eligible fo Tier1 (main) visa last year but did not see the point as thought would remain...

Hi

You are asking lots of questions, here is the answer to just one.

It sounds a bit worrying that your employer (and prospective sponsor) does not know about sponsoring migrant workers and getting a sponsor licence.

Here is the UKBA guidance on sponsorship. It is a 110 page document, see in particular pages 10-17:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

You will see that this is a fairly longwinded process. First the preparation of the application for the sponsor licence, including the collection of documents to be submitted, then the processing time UKBA will take over it. You can check current processing times for Tier 2 sponsorship applications by ringing 0300 123 4699.

Hope your employer wants you badly enough to go through this process!

[manci]

Good to hear that your employer is prepared to take all the hurdles and apply for a sponsor licence.

1.
It is not you but the employer who has to carry out a resident labour market test (assuming that you are not in one of the shortage occupations). Even if you worked for the same employer as a Tier 1 Dependant this is not one of the categories that are exempt from the RLMT. Advertising in connection with the RLMT has to run for 28 days.
2
It will have to be a restricted CoS.
3
You say that you are planning to stay with the same employer and are "just" switching from T1D to T2G. However, this type of switching is not allowed.

[Taurus2012]

Manci-thx for your prompt reply and YES it is good to have an employer like this who is ready to take hurdles- as they have a lot of dependancy on me! I am the ONLY indian candidate they have hired in years and since past 14 months I have been awarded twice the best employee...and told I was the best decision they took in years! I slog a lot!!!

On a serious note, they were unaware of all these rules as most employees have ILR or Brit passports...and would have really wanted me to continue on Tier1D, but because they want to retain hence ready for Tier2G.

1. I have found a good OISC immigration guy...who is ready to do all paperwork for my employer.
2. However, I may have to bear the cost of registration - I am okay with that, assuming that will be 10-15K...its worth it, given no other route
3. Employer is ready to give me 15 -20 days leave without pay - as I have told them the restricted CoS thing - and that I will have to apply outside the UK, from India.

BUT...the only worry me and emplyer have are (where your inputs are reqd):

1. Likeliness of Tier2G rejected, even if employer wants to hire me- and is doing this all for me. You told about RLMT- if employer after registration carries out jobcentre ad- and someone applies - do they have right to refuse (given they want to hire ME only)? Also they have to run ad for 28 days, which means by the time I catch the flight to india - they must already be registered and carried out an ad...else I cannot join them in 28 days...!!!
2. MOST importantly- I know Tier2G will be issued for 3 yrs- assuming it is issued, then will after 3 yrs I will be able to renew it for another 2 with my employer to get ILR (my sal would be >48K) OR there is a risk of NOT getting ILR with some new rules introduced...asthey are clamping on Tier2G leading to ILR's.

SORRY for perhaps so many 'worried' queries, but imp for me & employer- as we both are ready to face so many hurdles; just to know maybe they are not worth it....Mayve Tier1G opens in another 2-3 yrs...and I maybe able to switch...(am so much worried, sorry)

Good to hear that your employer is prepared to take all the hurdles and apply for a sponsor licence.

1.
It is not you but the employer who has to carry out a resident labour market test (assuming that you are not in one of the shortage occupations). Even if you worked for the same employer as a Tier 1 Dependant this is not one of the categories that are exempt from the RLMT. Advertising in connection with the RLMT has to run for 28 days.
2
It will have to be a restricted CoS.
3
You say that you are planning to stay with the same employer and are "just" switching from T1D to T2G. However, this type of switching is not allowed.

[manci]

Processing a sponsor licence application should cost around £2-3k if you use an OISC advisor. See, for instance,:

http://www.medivisas.com/workingintheuk.asp#employment

This website also gives you some indication of the timeframe involved.

Following the RLMT the employer must show that there is no suitable candidate from the settled workforce who can fill the job, i.e. there is no guarantee that they can give the job to you.

Also remember that there are monthly allocations of T2G CoSs (in 2011/12 there were aprox. 1500 per month).

The new rules (from 06/04/2012) are that Tier 2(G) visas are granted initially for 3 years and then they can be extended for a further max. 3 years. Under these rules ILR can still be applied for after 5 years (pay threshold £35k). In the UK, in contrast to some other countries, retrospective legislation is unlikely.

[eshaghbina]

Hi Manci,
I am at the same situation, but I am doubtful about this phrase:
According to pages 16 and 17 of the link (http://www.ukba.homeoffice.gov.uk/sitec ... dance2.pdf) about the Leave to Remain, I hope that we are not involved in the sentence (you have not since been granted leave to remain, entry clearance or leave to enter in any other route.) since our main applicant for the Tier 2 Visa goes abroad for his/her very first Entery Clearance. So we could be hopeful to extend our Tier 2 Visa (leave to remain) and to reach the ILR conditions after 5 years which will be started from the begining of this new Tier 2 Visa. And our stay as Tier 1 is useless for ILR.
Could please let me know your advice? Thank you in advance for reply.

Processing a sponsor licence application should cost around £2-3k if you use an OISC advisor. See, for instance,:

http://www.medivisas.com/workingintheuk.asp#employment

This website also gives you some indication of the timeframe involved.

Following the RLMT the employer must show that there is no suitable candidate from the settled workforce who can fill the job, i.e. there is no guarantee that they can give the job to you.

Also remember that there are monthly allocations of T2G CoSs (in 2011/12 there were aprox. 1500 per month).

The new rules (from 06/04/2012) are that Tier 2(G) visas are granted initially for 3 years and then they can be extended for a further max. 3 years. Under these rules ILR can still be applied for after 5 years (pay threshold £35k). In the UK, in contrast to some other countries, retrospective legislation is unlikely.

[manci]

Hi Eshaghbina,

You have not put your question very clearly.

I assume that you are at present in the UK as a PBS Dependant. You will leave the UK and will apply for Tier 2 (General) from your home country.

All being well you will be granted a Tier 2 (General) visa for a certain length of time and will then return to the UK. What you quote from pages 16/17 of the Tier 2 Policy Guidance has the title "Application for Leave to Remain" and it is for the time when your first T2G visa comes to the end of its validity and you apply for an extension.

You can only apply for an extension of your T2G visa if "you have not been granted, leave to remain, entry clearance or leave to enter in any other route" since your T2G visa has been granted.

[eshaghbina]

Hi Eshaghbina,

You have not put your question very clearly.

I assume that you are at present in the UK as a PBS Dependant. You will leave the UK and will apply for Tier 2 (General) from your home country.

All being well you will be granted a Tier 2 (General) visa for a certain length of time and will then return to the UK. What you quote from pages 16/17 of the Tier 2 Policy Guidance has the title "Application for Leave to Remain" and it is for the time when your first T2G visa comes to the end of its validity and you apply for an extension.

You can only apply for an extension of your T2G visa if "you have not been granted, leave to remain, entry clearance or leave to enter in any other route" since your T2G visa has been granted.

Thank you so much for the reply Manci.
At the moment I am in the UK with Tier 1 General as main applicant (Migrant) with my family. We are going to apply for the Tier2 General. This time my wife will be the main applicant (Migrant) and I will be the dependant.
According to the immigration laws the Tier 1 General is only granted to me? Or not, the Tier 1 Visa also granted to all dependants?

Thanks for your time and the reply.

[manci]

Thank you so much for the reply Manci.
At the moment I am in the UK with Tier 1 General as main applicant (Migrant) with my family. We are going to apply for the Tier2 General. This time my wife will be the main applicant (Migrant) and I will be the dependant.
According to the immigration laws the Tier 1 General is only granted to me? Or not, the Tier 1 Visa also granted to all dependants?

As I understand it you are at present in the UK as a Tier 1 General migrant and your wife is here as a Tier 1 dependant. These are two different immigration categories.

Once you achieve the change you outlined, by applying from abroad, your wife will be a Tier 2 General migrant and you will be a Tier 2 dependant.

[eshaghbina]

Our case is the one you mentioned. In our case and according to current regulations, can we extend out Tier 2 Visa (Leave to Remain) again after 3 years? Can we hopeful for ILR after 5 years of having Tier2 ?
Thanks for reply Manci.

Thank you so much for the reply Manci.
At the moment I am in the UK with Tier 1 General as main applicant (Migrant) with my family. We are going to apply for the Tier2 General. This time my wife will be the main applicant (Migrant) and I will be the dependant.
According to the immigration laws the Tier 1 General is only granted to me? Or not, the Tier 1 Visa also granted to all dependants?

As I understand it you are at present in the UK as a Tier 1 General migrant and your wife is here as a Tier 1 dependant. These are two different immigration categories.

Once you achieve the change you outlined, by applying from abroad, your wife will be a Tier 2 General migrant and you will be a Tier 2 dependant.

[manci]

Our case is the one you mentioned. In our case and according to current regulations, can we extend out Tier 2 Visa (Leave to Remain) again after 3 years? Can we hopeful for ILR after 5 years of having Tier2 ?
Thanks for reply Manci.

When your wife obtains her Tier 2 General visa it will be for 3 years and she will be able to extend it by a further 3 years (leave to remain).

She will be able to apply for settlement after 5 years (pay threshold £35k unless she is in a PhD or shortage occupation).

[eshaghbina]

Our case is the one you mentioned. In our case and according to current regulations, can we extend out Tier 2 Visa (Leave to Remain) again after 3 years? Can we hopeful for ILR after 5 years of having Tier2 ?
Thanks for reply Manci.

When your wife obtains her Tier 2 General visa it will be for 3 years and she will be able to extend it by a further 3 years (leave to remain).

She will be able to apply for settlement after 5 years (pay threshold £35k unless she is in a PhD or shortage occupation).

Thank you so much Manci. Take care.

[Taurus2012]

Manci- As luck would have had it; my employer who had earlier agreed to switch me from Tier1Dep to Tier2G developed cold feet after I told them the process outlined- i.e. I need to go out of country, need to go thru labour market test etc and the complexities of becoming a Tier2 sponsor etc. The CTO had recommended me but CEO refused saying that they still dont want to let go of me but cannot become a sponsor just for one employee! They however said if I were to secure a visa somehow (!!!) they would want to retain me.
I then checked a few links or adverts on google and linkedin - and found out varios cos (withhelding names) who say they can sponsor me on Tier2 visa, but I need to have a daily-rate contract of £225 min. Now here is the fun/crazy part re which I am getting different responses and need your advice, maybe others also (like eshag) get benefitted:

1. I am on current pa sal of 48K. Assuming my employer agrees to take me sub-contracted thru umbrella on a daily rate scheme (like these cos mention) - will 48K perm translate to 225pd? I assume I cannot be sub contracted as a perm?
2. I still assume even if I get sub-contracted by umbrella, I will have to go out of country- BUT do I will have to go thru Labour market test if I am being sponsored as a contractor by such umbrellas?
3. The most funny thing is - some of umbrellas say I will be sponsored under Tier2G some say Tier2ICT! I wonder how it can be ICT as these visas are for mnc's sponsoring their overseas employees...Are these umbrella cos misinformed or bluffing?

A very important thing which all of these cos mentioned understanding our situation - ALL of them recommend that instead of me switching from Tier1Dep to Tier2 (G or ICT?) and then make an application out of country and effectively RESETTING our ILR clock; it would be much better if my husband (who currently has a Tier1G and entered UK before April 2011) switches to Tier2 (G or ICT?) as:

1. it will be In-Country switch and possible wont have to go thru labour market test (Is that true??) and
2. The time spent of approx 2 yrs of Tier1G can be added to Tier2G switched time - and that saves us resetting dilemma.
3. We are getting mixed responses that he will have to switch to Tier2ICT as Tier1G switch requires a sal of £150,000. But I understand in-country switch from Tier1G to Tier2G does not hve such limitation? Plz clarify.

Your views on such options will be very welcome - as we are in dilemma which one of us should switch. If my hubby switches, I can work with my current employer un-restricted and without leaving the country (probably?) but the downside is my hubby is in Sr management/leadership role - where contract opps are very limited. But then, life isn't fair, times are hard and we will have to make a good choice. THANKS this forum is there and people like you...

Processing a sponsor licence application should cost around £2-3k if you use an OISC advisor. See, for instance,:

http://www.medivisas.com/workingintheuk.asp#employment

This website also gives you some indication of the timeframe involved.

Following the RLMT the employer must show that there is no suitable candidate from the settled workforce who can fill the job, i.e. there is no guarantee that they can give the job to you.

Also remember that there are monthly allocations of T2G CoSs (in 2011/12 there were aprox. 1500 per month).

The new rules (from 06/04/2012) are that Tier 2(G) visas are granted initially for 3 years and then they can be extended for a further max. 3 years. Under these rules ILR can still be applied for after 5 years (pay threshold £35k). In the UK, in contrast to some other countries, retrospective legislation is unlikely.

[manci]

Hi Taurus 2012
If your husband were to switch from T1G to T2G would the company where he works at present be willing to sponsor him?

[Taurus2012]

Manci- Thx for the reply. Unfortunately co where my hubby works will not sponsor him for Tier2G else there would be no problem at all. That is why we started looking for alternate solutions i.e. as outlined in my previous posts to look for Tier2 sponsorsing cos (which were hard to find in recession) and THEN stumbled across certain cos - which call themselves contractor umbrellas - and say they can sponsor one on Tier2 (G or ICT that is the confusion) - BUT one can ONLY work on a contracting per-day model and NOt a perm-salary model. Hence my previous post queries i.e.

1. Is that model safe - and will they sponsor Tier2G or Tier2ICT? I still cant understand how it can be Tier2ICT as some of them claim - as ICT has got completely different rules.
2. Is it better for me to switch to Tier2G/ICT thru one such contractor-umbrellas OR my husband. Why this question - as my hubby probably would be able to switch in-country (saving ILR time). If I switch - that will be out of country - resetting clock.
3. If they visa is Tier2ICT - as these cos claim - will it still lead to ILR after 5 years - as I believe anyone on ICT after apr 2011 is not eligible.
4. If my hubby switches to Tier2 incountry - will he be subject to LM test or will he also has to meet the 150K threshold - even if he is switching from Tier1G to Tier2 incountry?

Sorry for repeating my questions...worried...Thx in anticipation, as we have to take a decision fast enough before his Tier1 expires.

Hi Taurus 2012
If your husband were to switch from T1G to T2G would the company where he works at present be willing to sponsor him?

[manci]

Hi Taurus 2012

I'm afraid I have no experience with these so-called umbrella companies. They are probably operating on the fringes of legality. You should be very careful.

Type "umbrella" in the search for topics - there are quite a few posts.

[aarnags]

I am not expert but will give a try but wait for expert comment

Manci- Thx for the reply. Unfortunately co where my hubby works will not sponsor him for Tier2G else there would be no problem at all. That is why we started looking for alternate solutions i.e. as outlined in my previous posts to look for Tier2 sponsorsing cos (which were hard to find in recession) and THEN stumbled across certain cos - which call themselves contractor umbrellas - and say they can sponsor one on Tier2 (G or ICT that is the confusion) - BUT one can ONLY work on a contracting per-day model and NOt a perm-salary model. Hence my previous post queries i.e.

1. Is that model safe - and will they sponsor Tier2G or Tier2ICT? I still cant understand how it can be Tier2ICT as some of them claim - as ICT has got completely different rules.
No idea
2. Is it better for me to switch to Tier2G/ICT thru one such contractor-umbrellas OR my husband. Why this question - as my hubby probably would be able to switch in-country (saving ILR time). If I switch - that will be out of country - resetting clock.
It would be better if your husband make switch as he will not be subject to new rules. like change of employer application
3. If they visa is Tier2ICT - as these cos claim - will it still lead to ILR after 5 years - as I believe anyone on ICT after apr 2011 is not eligible.
4. If my hubby switches to Tier2 incountry - will he be subject to LM test or will he also has to meet the 150K threshold - even if he is switching from Tier1G to Tier2 incountry?
No
Sorry for repeating my questions...worried...Thx in anticipation, as we have to take a decision fast enough before his Tier1 expires.

Hi Taurus 2012
If your husband were to switch from T1G to T2G would the company where he works at present be willing to sponsor him?

[Taurus2012]

AArnags & Manci- Thanks both for your comments. I really appreciate the help given in these forums...To answer Manci's comments on the legality front, YES we are also paranoid about the legality front of these umbrella visa sponsoring cos, thats why asking in forum. But the most ironical things are:

1. My hubby worked for his org for over 12 years, still when he is fallng short of Tier1G extention; his co is not willing to sponsor him for Tier2G, as they dont want to go thru hurdle of LM test etc! So much for loyalty.
2. I slogged like hell for my co and they mark me as indispensible. However, when I requested them to arrange for a Tier2G (and I was ready to pay them registration fee to become a sponsor etc) - they backed out - as again, they didnt want a hassle of LM test etc but wanted a 'convinient route'. I have worked 12 hrs+ per day for 1.5 yrs for this org. So much so, again for loyalty and hard work.

WHERE THE WORLD IS UPTO? Can't a hard working couple legally work here? Are getting Tier2's so difficult? Are highly talented, hardworking people so unwanted? I know everyone will say damned recession but what the heck! Employers have become so mean!!!

Yes it is our problem, but am sure many may have been hit by same issues - as we dont want to uproot & unsettle our lives and go back to home countries; THAT's why we have to choose verge-of-legality routes likes contracting umbrellas etc. Wish Tier1G would have been there, I would have qualified. So much so for paying thousands of pounds of taxes (both of us) and not being able to find a route to stay! Bad luck...

One basic (last perhaps) question to both Manci and aarnags- Yes you said switching would be easy for my hubby and that also in-country as he is on Tier1G. However, all of these cos say that he will have to undergo LM test or show a sal of 150K. Is that true? I doubt. (Yes it could be true if I were to switch out of country and file a new Tier2 app). Also WHY these cos say visa will be Tier2 ICT? I think they are misinformed. But they say 'no we are not' and when you ask questions they back off! Any suggestions?

I am not expert but will give a try but wait for expert comment

Manci- Thx for the reply. Unfortunately co where my hubby works will not sponsor him for Tier2G else there would be no problem at all. That is why we started looking for alternate solutions i.e. as outlined in my previous posts to look for Tier2 sponsorsing cos (which were hard to find in recession) and THEN stumbled across certain cos - which call themselves contractor umbrellas - and say they can sponsor one on Tier2 (G or ICT that is the confusion) - BUT one can ONLY work on a contracting per-day model and NOt a perm-salary model. Hence my previous post queries i.e.

1. Is that model safe - and will they sponsor Tier2G or Tier2ICT? I still cant understand how it can be Tier2ICT as some of them claim - as ICT has got completely different rules.
No idea
2. Is it better for me to switch to Tier2G/ICT thru one such contractor-umbrellas OR my husband. Why this question - as my hubby probably would be able to switch in-country (saving ILR time). If I switch - that will be out of country - resetting clock.
It would be better if your husband make switch as he will not be subject to new rules. like change of employer application
3. If they visa is Tier2ICT - as these cos claim - will it still lead to ILR after 5 years - as I believe anyone on ICT after apr 2011 is not eligible.
4. If my hubby switches to Tier2 incountry - will he be subject to LM test or will he also has to meet the 150K threshold - even if he is switching from Tier1G to Tier2 incountry?
No
Sorry for repeating my questions...worried...Thx in anticipation, as we have to take a decision fast enough before his Tier1 expires.

Hi Taurus 2012
If your husband were to switch from T1G to T2G would the company where he works at present be willing to sponsor him?

[manci]

AArnags & Manci- One basic (last perhaps) question to both Manci and aarnags- Yes you said switching would be easy for my hubby and that also in-country as he is on Tier1G. However, all of these cos say that he will have to undergo LM test or show a sal of 150K. Is that true? I doubt. (Yes it could be true if I were to switch out of country and file a new Tier2 app). Also WHY these cos say visa will be Tier2 ICT? I think they are misinformed. But they say 'no we are not' and when you ask questions they back off! Any suggestions?

[

Hi Taurus2012

Understand your frustration entirely.

If your husband switches from T1G to T2G his sponsor/employer would have to do a Resident Labout Market Test unless his annual salary is £150k or over. see: http://www.ukba.homeoffice.gov.uk/busin ... t/#header2 (in Tier 1 only Post Study Workers are exempt from the RLMT). However, an RLMT is not the end of the world - the company just has to advertise the post for 28 days but of course there is no guarantee that someone suitable from the resident labour market does not turn up.

A condition for assigning Tier 2 ICT CoSs (both Long and Short Term Staff) is that the migrant must have worked for the sponsor company overseas for at least 12 months before coming to the UK. So, whatever loopholes these umbrella-companies use I don't see how they can wriggle out of this one!

[aarnags]

Taurus2012

Sorry I misunderstood that your husband is on T2G or T2ICT.

Home office messing up all working visa category since they introduced PBS.
It is hard to follow new rules and judge whether stay in same category or make a switch.

All the best..