URGENT HELP PLZ: PSW to TIER 2 Visa refused

[nadjib31000]

Hi Everyone,

I have been a silent watcher of this forum for a couple of years now, and it has been very helpful to my case. I am now a british citizen.

I urgent need help for my girlfriend's case however.

She is working for small company on a PSW visa. The company agreed to sponsor her and they provided an SOC and she made the application on the 23rd of February, a day before her leave expired on 24/02/13.

on the 27th of April she was refused leave on the following ground:

1- the job title that the HR person issued an SOC for is a level 4 type job.
2- the salary falls a few hundred pounds under the 20400 pounds required.

Now the mistakes were made by the company's hr department despite my gf explaining everthing to them and insisting they issue the right code. They have however messed it up!!!

Now, on the refusal letter it says that she can appeal within 10 days from the receipt of the letter, which would be Monday the 13th of April, hence the urgency of the case.

we have in contact with ICS legal for advice on what to do next. they say that she should make a new application with a new COS for level 6 job title, but they reckon that she can no longer apply as a new entrant but as an experienced applicant since her leave has expired.

I have disagreed with them but they seem adamant that this is the only realistic chance for her to get approval.

The company agreed to change her job title on the contract letter but they refuse to increase the salary to the experienced level threshold of 27400 pounds.

I really need urgent clarification regarding this from the people who know this stuff or experienced a similar situation PLZ.

Any help is much appreciated!!

Thanks

[manci]

I expect your girlfriend is not under 26 otherwise she would qualify as a new entrant by virtue of her age.

Immigration Rules Appendix J, para 14(d) provides that:

(d) Where both "new entrant" and "experienced worker" rates are stated in Tables 1 to 5, the "new entrant" rate will only apply if the applicant:

(i) is applying as a Tier 2 (General) Migrant and scores points from the Post-Study Work provisions of Appendix A,
......................
(iv) was under the age of 26 on the date the application was made,

IMHO your girlfriiend will score poiints from the PSW provisions because she last had leave in this category.

Also note that by reference to para 78B of Appendix A of the Immigration Rules she doesn't need an RLMT. The current 04/13 T2 policy guidance para 91 has not been updated to reflect the April 2013 rule changes and is wrong in this regard.

Suggest you phone the UKCISA helpline to confirm the above (020 3131 3576).

There is no point in appealing the refusal as it was correctly made.

She can re-apply within 28 days from the refusal with a new CoS but the job must be NQF level 6 and the salary at least the minimum for the SOC code (note that the min salaries are for a 39 hour week but can be pro-rated)

[nadjib31000]

[quote="manci"]I expect your girlfriend is not under 26 otherwise she would qualify as a new entrant by virtue of her age.

Immigration Rules Appendix J, para 14(d) provides that:

([i]d) Where both "new entrant" and "experienced worker" rates are stated in Tables 1 to 5, the "new entrant" rate will only apply if the applicant:

(i) is applying as a Tier 2 (General) Migrant and scores points from the Post-Study Work provisions of Appendix A,
......................[/i]
[i](iv) was under the age of 26 on the date the application was made, [/i]

IMHO your girlfriiend will score poiints from the PSW provisions because she [b]last had leave[/b] in this category.

Also note that by reference to para 78B of Appendix A of the Immigration Rules she doesn't need an RLMT. The current 04/13 T2 policy guidance para 91 has not been updated to reflect the April 2013 rule changes and is wrong in this regard.

Suggest you phone the UKCISA helpline to confirm the above (020 3131 3576).

There is no point in appealing the refusal as it was correctly made.

She can re-apply within 28 days from the refusal with a new CoS but the job must be NQF level 6 and the salary at least the minimum for the SOC code (note that the min salaries are for a 39 hour week but can be pro-rated)[/quote]

Hi Manci,

Thanks for your reply. Yes you are right she is not under 26. I also thought that since at the time of the application she was under PSW she would score points through that. I will contact UKCISA tomorrow to inquire.

We realise that she does not need an RLMT, but I will get her to ensure that the company is aware of the 39 hrs rule regarding minimum salary.

Do you reckon she needs to appeal to buy herself some time to get the new COS sorted and then cancel and make a new application?? we are just worried that the COS may not be ready in time.

Another question: we were due to get married next year anyway, but in light of this we are seriously considering doing that now. Do you thin it would be wise to do so now? if so, she will need to request her passport to do register for marriage (unfortunately she does not have any other photo ID), which might rise suspision by UKBA that this may be just a way to get leave despite the fact that we have been together for almost 5 years!!!

Thanks

[manci]

Hi Manci,

Thanks for your reply. Yes you are right she is not under 26. I also thought that since at the time of the application she was under PSW she would score points through that. The requirement to have extant leave at the time of applying to switch from PSW to T2G has been removed as of 06/04/2013. Now if the person overstays up to 28 days he/she can still apply. However, if her re-application is refused she will not be given the right to appeal I will contact UKCISA tomorrow to inquire.

We realise that she does not need an RLMT, but I will get her to ensure that the company is aware of the 39 hrs rule regarding minimum salary.

Do you reckon she needs to appeal to buy herself some time to get the new COS sorted and then cancel and make a new application?? we are just worried that the COS may not be ready in time.This depends how soon her sponsor can produce a CoS. Presumably they don't have an allocation available and will have to apply for one? If they had an allocation the CoS can be assigned in a matter of minutes. She could certainly buy some time by appealing but this would have to be done within the 10 day window (check the exact rules how the 10 days are calculated). Note that as an overstayer she is not allowed to work at present.

Another question: we were due to get married next year anyway, but in light of this we are seriously considering doing that now. Do you thin it would be wise to do so now? if so, she will need to request her passport to do register for marriage (unfortunately she does not have any other photo ID), which might rise suspision by UKBA that this may be just a way to get leave despite the fact that we have been together for almost 5 years!!! I'm not sufficiently familiar with this topic to answer your question. If you want to research it yourself start here: http://www.ukba.homeoffice.gov.uk/visas ... igibility/
or search the forum or wait for someone to answer or ask UKCISA.Thanks

[nadjib31000]

Hi Manci,

Thanks for your reply. Yes you are right she is not under 26. I also thought that since at the time of the application she was under PSW she would score points through that. The requirement to have extant leave at the time of applying to switch from PSW to T2G has been removed as of 06/04/2013. Now if the person overstays up to 28 days he/she can still apply. However, if her re-application is refused she will not be given the right to appeal I will contact UKCISA tomorrow to inquire.

We realise that she does not need an RLMT, but I will get her to ensure that the company is aware of the 39 hrs rule regarding minimum salary.

Do you reckon she needs to appeal to buy herself some time to get the new COS sorted and then cancel and make a new application?? we are just worried that the COS may not be ready in time.This depends how soon her sponsor can produce a CoS. Presumably they don't have an allocation available and will have to apply for one? If they had an allocation the CoS can be assigned in a matter of minutes. She could certainly buy some time by appealing but this would have to be done within the 10 day window (check the exact rules how the 10 days are calculated). Note that as an overstayer she is not allowed to work at present.

Another question: we were due to get married next year anyway, but in light of this we are seriously considering doing that now. Do you thin it would be wise to do so now? if so, she will need to request her passport to do register for marriage (unfortunately she does not have any other photo ID), which might rise suspision by UKBA that this may be just a way to get leave despite the fact that we have been together for almost 5 years!!! I'm not sufficiently familiar with this topic to answer your question. If you want to research it yourself start here: http://www.ukba.homeoffice.gov.uk/visas ... igibility/
or search the forum or wait for someone to answer or ask UKCISA.Thanks

Hi Manci,
she has had a reply from a lawyer who is looking into her case and they advised her that under section 7.9 of the codes of practice she can still qualify for the new entrant and seem to be adamant that she (the lawyer) is right. she has also agreed to get in touch with a contact she has at UKBA to further inquire about this on Monday, before making the final decision whether or not to make a fresh application. we have supplied her with reports from ICS that explain the grounds they based they conclusions on as to the fact that my girlfriend can not apply as a new entrant and she is going to review them too, prior to contacting UKBA for further clarification.

We are now going to wait and see what she comes back with and I shall inform you and people who might have a similar case here on this forum of what she says.

In the meantime if you have any suggestions on possible research we can do or questions we might need to request for her to ask UKBA please by all means let me know.

Thanks