Labor Market test required for PSW(in section 3C) to Tier 2?

[Gorgeous_Worrier]

Dear Sir/Madam

Please help me with this situation by providing this specific advice.

In my case, I already made an application for Tier 1 Ent. by switching from PSW category and still waiting for a decision. My PSW Visa has already expired in December, 2012 and at present I am staying in UK under 'Section 3C leave' until I get the decision of my existing application.

I am still waiting for the decision of my Tier 1 Ent. application. And now, I got an employer who can sponsor me and I am planning to submit a varying application for tier 2 sponsorship application.

Also, I consider the fact that in normal situation to switch from PSW to Tier 2, it is exempted to perform resident labor market test (RLMT).

But, In my case, my PSW visa is already expired in my passport and currently I am on section 3C leave which extends my PSW visa virtually.

Now, For Switching from PSW to Tier 2, the Policy guidance of Tier 2 states as follows;

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Post-Study Work
91.You will be awarded 30 points if you have a Certificate of Sponsorship and are are applying
to switch into Tier 2 (General) and you have, or were last granted entry clearance under
one of the following:
• Tier 1: Post Study category; or
• Fresh Talent: Working in Scotland Scheme; orTier 2 Policy Guidance (Version 12/2012) - Page 22 of 59
• International Graduate Scheme (or its predecessor, the Science and Engineering
Graduate Scheme).
Your sponsor will only be exempt from undertaking a resident labour market test if you have current leave in one of the above categories on the date of your application. If you do not have current leave on the date your application is submitted your sponsor will
have to meet the appropriate resident labour market test requirements.

-------------------------------------------------------------------------------------

Now, in my passport it shows that my PSW leave has already expired. So, my question is, in this case does my employer need to do resident labor market test (RLMT)?

It seems very complex to me and this stresses me out a lot. please help me.

Thanks in advance!

[nisarmalik]

No need to go for RLMT

[mthila]

Paragraph 78(B) of Appendix A of the immigration act 1971 states that if you have last been granted visa as Tier 4 or Tier 1 PSW, then you are exempted from the RLMT. No matter what the policy guidance say, rules preside and rules are the law. You have a legal right to be exempted from the RLMT. Therefore not to worry. You can withdraw the application and apply really quickly. Most preferably the same day. I'd even use a PEO appointment for the application. If not, at least use the priority postal service

[Gorgeous_Worrier]

@ nisarmalik - Thank you for your guidance. Much helpful.

@ Mthila - Thank you very much. I got a question for you - 'At present, I have already passed my end date of PSW visa stated in my passport. If I withdraw my application now, then wouldn't I be considered as over stayer?'


I would request any senior member can bring their attention to my previous and this question as well. Then It would be much helpful.

Thank you..

[Gorgeous_Worrier]

Dear Senior Members

I am still waiting for your attention. Please help me with this situation and provide your expert advice.

Thanks in advance...

[mthila]

At present, I have already passed my end date of PSW visa stated in my passport. If I withdraw my application now, then wouldn't I be considered as over stayer?.

Yes they would. But it is not a bad thing because you haven't over-stayed more than 28 days. Therefore you are fine and safe in terms of making a new application followed by withdrawing the current one. You don't have to do the RLMT either. But I'd strongly recommend you to at least use the priority postal service for your application if you can't book a PEO appointment.

NB be as quick as you can after withdrawing the application when submitting the new one. because if you get delayed more than 28 days, your application is automatically rejected.

[Gorgeous_Worrier]

Dear Mthila,

Thank you very much for your reply. I still have some doubt that;

Instead of withdrawing and re applying the application, isn't better to vary the ground of application to tier 2?

It would be great to hear back from you.

Big Thank you...

[vinny]

Varying an application should be a better option than withdrawing, as the former saves your money, preserves your status and rights of appeal.

[Gorgeous_Worrier]

Thanks you Vinny for your valuable guidance. This will help me to proceed forward in the right direction.....!!

More to that, it would be great if you can provide expert advice on my confusion that;

-Does it required to do 'Resident Labor market test' if I vary the grounds of appeal to tier 2. My PSW visa has already expired. and now I am under section 3C leave. I understand the fact that at present my PSW leave is 'treated as continuing', But Tier 2 Policy Guidance of states as follows;

"Post-Study Work
91.You will be awarded 30 points if you have a Certificate of Sponsorship and are are applying
to switch into Tier 2 (General) and you have, or were last granted entry clearance under
one of the following:
• Tier 1: Post study category; or
• Fresh Talent: Working in scotland scheme; orTier 2 Policy Guidance (Version 12/2012) - Page 22 of 59
• International Graduate scheme (or its predecessor, the science and engineering
Graduate scheme).

Your sponsor will only be exempt from undertaking a resident labour market test if you
have current leave in one of the above categories on the date of your application. If you
do not have current leave on the date your application is submitted your sponsor will
have to meet the appropriate resident labor market test requirements.

I am bit confused that what should I understand from this as, in my passport expiry date is till December, 2012. But at present I am still under PSW because I am under 'Section 3C' due to my existing Tier 1 Ent. application. This confirms my PSW leave 'treated as continuing'.

Please advise me what should I do?

Should I proceed with vary the application to tier 2 (without RLMT)? And write in the cover letter that I am still under PSW because of above mentioned reason?

OR ask my employer to do RLMT?

I am just being curious because I do not wish to get any problems at later stage....

I have limited time left to decide as its been 5 months of my Tier 1 application and situation can change to any direction.....

Please help me, I am in big confusion......