Tier 2 Rejected - Please Help for My Options

[ertis]

Dear All,

My tier 2 application is rejected and I am planning to appeal for reconsideration.
I was switching from PSW. The main problem is that when my company applied for sponsorship, they applied with the SOC code A, instead of code B. My salary is below the salary required for the former but above the latter, and both job descriptions are suitable for me.

The immigration agency that works with my company said that it can be possible to apply for an appeal because:
My first sponsorship application was rejected on March 16th, and a new application was made on April 5th. Sponsorship was granted on April 15th. Currently I don't know the reason of the first rejection (the agency didn't tell it to my boss yet) but assuming that it was UKBA's fault. At the time of the first application, the agency says that the minimum salary limit was below my salary, and if we appeal with the request to be considered with the previous rules (Tier 2 rules before April 6th, 2011) they should allow the tier-2 visa.

Now, I don't have much time left for the appeal, and the agency is redirecting my company to a solicitor, that might take £1200 for this case.

I would be glad for any information or opinion about this case. The solicitor will consider the case on Monday and based on that, I will return to my country or apply for an appeal.

Thank you in advance.

[geriatrix]

When did your Tier 1 (PSW) leave expire?

[ertis]

When did your Tier 1 (PSW) leave expire?

It expired on the 20th of April.

[pricesoft]

Sorry to hear about what happened.

My tier 2 visa application was refused last year for a very similar reason. I have gone through the appeal process and have already exhausted my appeal avenues. See here

Can you be more precise about the 2 SOC codes in question? What is your job title and what job title/heading under the SOC did the UKBA use to decide your application?

[ertis]

Sorry to hear about what happened.

My tier 2 visa application was refused last year for a very similar reason. I have gone through the appeal process and have already exhausted my appeal avenues. See here

Can you be more precise about the 2 SOC codes in question? What is your job title and what job title/heading under the SOC did the UKBA use to decide your application?

Hi pricesoft, thank you for your answer, I have read the discussion on the page you referenced. I agree with @ashleyransoo that "It is very unfair that employers are not given enough information/help to use the sponsorship management system." Because my sponsor selected the seniour job title, I now face the danger of loosing the right to apply for ILR in the future and pay solicitors high amounts of money.

I hope you get your visa granted soon. SOC code's and their salary requirements and my salary are very similar to the amounts you described in your post.

Additional questions:

* I tried to get hold of the previous SOC Codes and salary limits prior to April 6th 2011, since those were the limits when my company sent the sponsorship application. Does anybody know where can I find that information?

* If I apply for an appeal and get negative response, am I going to be regarded as an over stayer and is my ILR clock will be reset, or am I going to have some time before I return to my country?

Tomorrow I am consulting to the solicitor, I will update my situation. Meanwhile I appreciate any information or opinion. Thanks again.

[pricesoft]

To be honest, I dont think the SOC codes in the code of practice have changed much compared to what they were before the 6th of April. The code of practice is based on the Standard Occupational Classification 2000 and I don't see them changing anytime soon. With regards to the salary limits of the job titles, some of them may have changed. I believe your sponsor had selected code 2132 (Software Professionals). If this is the case, I don't think the salary for the job titles under SOC 2132 have changed much. Don't take my words for it though and see if you can lay your hands on the previous code of practice and do the comparison. Although, I can confirm that the salary of the Programmer and Web Designer job titles didnt change at all as I have monitored them.

With regards to your previous question, if you appeal the decision, initially you will be appealing to the First Tier tribunal. If it falls though, then you will have 5 days from the date you received the decision of the appeal to again appeal the First Tier Tribunal's decision or leave the country. As long as you do something within the 5 days then you won't become an overstayer.

I feel you have a good case, but how to approach it will be critical and this is where a good solicitor comes in. I had a good case, but the approach advise by my solicotor wasn't good. Make sure your solicitor is knowledgable in Tier 2 matters. Challenge the solicitor if you have any reason to doubt what they say. As a point of strategy, you can have your sponsor conduct a RLMT on your job just in case you have to return home to submit a fresh application from home.

I am only able to give you all of this advise from my experience over the last year. This are the things I would have done in hindsight. Make sure you seek more advise.

Good luck

[ertis]

To be honest, I dont think the SOC codes in the code of practice have changed much compared to what they were before the 6th of April. The code of practice is based on the Standard Occupational Classification 2000 and I don't see them changing anytime soon. With regards to the salary limits of the job titles, some of them may have changed. I believe your sponsor had selected code 2132 (Software Professionals). If this is the case, I don't think the salary for the job titles under SOC 2132 have changed much. Don't take my words for it though and see if you can lay your hands on the previous code of practice and do the comparison. Although, I can confirm that the salary of the Programmer and Web Designer job titles didnt change at all as I have monitored them.

With regards to your previous question, if you appeal the decision, initially you will be appealing to the First Tier tribunal. If it falls though, then you will have 5 days from the date you received the decision of the appeal to again appeal the First Tier Tribunal's decision or leave the country. As long as you do something within the 5 days then you won't become an overstayer.

I feel you have a good case, but how to approach it will be critical and this is where a good solicitor comes in. I had a good case, but the approach advise by my solicotor wasn't good. Make sure your solicitor is knowledgable in Tier 2 matters. Challenge the solicitor if you have any reason to doubt what they say. As a point of strategy, you can have your sponsor conduct a RLMT on your job just in case you have to return home to submit a fresh application from home.

I am only able to give you all of this advise from my experience over the last year. This are the things I would have done in hindsight. Make sure you seek more advise.

Good luck

Thanks again for your response. During my application my boss said they requested the sponsorship with the "Analyst Programmer" position, so we decided that I had the same title on my Tier application. If the code was "Programmer" that would not have caused a problem. He was confused and wondering why HO granted the certificate in the first place, since they declared the job title and the salary during the sponsorship application.

I didn't need a RLMT since I was switching from PSW. Now that my PSW has expired, I believe we will require that too, if the appeal gets refused.

[pricesoft]

Just to clarify that there is a difference between the classification codes and the job tites. Job titles are not assigned codes, only the occupational classification that these job titles belong to are assigned classification code. So in your case, 2132 is the code for Software Professionals and "Progammer" and "Analyst Programmers" are just 2 of a few other job titles under the occupational classification of a Software Professional.

When did your sponsor get the CoS? If your sponsor received your allocation on or after the 6th of April, I don't think your sponsor will have had to provide your job title and/or job salary. This isn't required for "unrestricted" CoS I believe. However, at the point of issuing the allocated CoS to you, your sponsor may have specified your job title as Analyst Programmer. Assigning the CoS is done via the Sponsor Management System and the system doesn't complain if you specify a lower salary to the one that is required for the job title. If this is the case, then it may be a little tricky. In any case, you still have a good case going into your appeal harmed with your job contract which specifies and proves that you are a "Programmer" and not an "Analyst Programmer". Although, whether or not any new evidence proving your actual job title will be admissible at the appeal hearing is up for debate.

Whatever happens, in the meantime, work towards getting your employer to conduct the RLMT. It puts you in a very good position going forward. Don't fret, you should be fine. Just make sure you gain and have the support of your sponsor.

Good luck.

[ertis]

Just to clarify that there is a difference between the classification codes and the job tites. Job titles are not assigned codes, only the occupational classification that these job titles belong to are assigned classification code. So in your case, 2132 is the code for Software Professionals and "Progammer" and "Analyst Programmers" are just 2 of a few other job titles under the occupational classification of a Software Professional.

When did your sponsor get the CoS? If your sponsor received your allocation on or after the 6th of April, I don't think your sponsor will have had to provide your job title and/or job salary. This isn't required for "unrestricted" CoS I believe. However, at the point of issuing the allocated CoS to you, your sponsor may have specified your job title as Analyst Programmer. Assigning the CoS is done via the Sponsor Management System and the system doesn't complain if you specify a lower salary to the one that is required for the job title. If this is the case, then it may be a little tricky. In any case, you still have a good case going into your appeal harmed with your job contract which specifies and proves that you are a "Programmer" and not an "Analyst Programmer". Although, whether or not any new evidence proving your actual job title will be admissible at the appeal hearing is up for debate.

Whatever happens, in the meantime, work towards getting your employer to conduct the RLMT. It puts you in a very good position going forward. Don't fret, you should be fine. Just make sure you gain and have the support of your sponsor.

Good luck.

Thank you @pricesoft, you will receive many positive energy during my prayer
My sponsor first applied for CoS on February 2011. It got rejected for a reason that we don't know yet on March 15th. Company applied for CoS again on April 5th. It was granted on April 15th. And I sent my Tier-2 application on April 19th. I got the notice of rejection of my Tier2 on May 18th.

When I was filling my form, my boss told me that they mentioned the job title in the CoS request and we decided to put that title in my application. I think you are right about the assumption that the software did not complain about the salary and they mentioned the job title during job allocation to me.

I saw the solicitor today and he said that he works with tier-2 applications and he didn't think that it would be a good idea to try to change the CoS application of the company. Then I made a stupid mistake and said that I sent my Tier-2 application on April 5th (It should have been May 19th) and he said that we can have a chance going that way, because the rules were changed on April 6th. In other words I ruined my chance to get more details from a professional about how to form my appeal.

I believe I should prepare an appeal anyway and request my company to start a RLMT and I should try to make a new application from my country, in case the appeal gets rejected.

Thank you again for your help.

[ertis]

Another question: Would it be possible if I withdraw my application, get back my application fee. Return to my country, fill in a new application with the same CoS reference, this time with the correct job title and salary.
The first CoS was received without a market test because I had PSW and I worked more than 6 months for the company. This time I will be outside of UK, so would it be possible to use the same CoS?

[pricesoft]

I don't think you will be able to submit a new application with the same CoS you used with your previous application. It is already considered as "used". You might want to get your sponsor to request for a new "unrestricted" CoS. If you are issued one by the UKBA you may then submit a new application using that.

Remember however that you can't submit a new Tier 2 application after you have lodged an appeal. Ideally, you want to submit the new application BEFORE you lodge the appeal against the previous decision.

Remember though that any application made between when your previous application was refused and when you lodge the appeal is an out-of-time application and will be considered at the discretion of the UKBA.

I understand the time window here (10 days I think), so you may want to work with your employer as quickly as possible.

Cheers

[ertis]

The Solicitor said that it is possible not to issue an appeal and make a new application (This time with the proper amount of salary), despite the fact that I will be considered as an overstayer. He says that there have been cases where the secretary of state was convinced to consider over staying applications.

Here is another question that I would be glad if I can get some help.

I am planning to make a new application from abroad. This will require my company to issue a new RLMT, and it might take quite a time. To my information, if I stay abroad more than 3 months, my ILR clock might reset.

I am able to apply for an ECAA visa. It is not my favourite option because i can't qualify for ILR with ECAA. But I am hearing rumours that ECAA holders may gain the right to be considered for ILR in the future.

I would like to learn if it would be a good idea to apply to ECAA from UK. I have been working for my company for more than 1 year.

I would appreciate any help. Regards.

[pricesoft]

Sorry, I hadn't got back to you earlier.

Your solicitor is right, but I believe it depends on how you go about it. Like I explained in my previous post, I believe if you can submit a new application before you lodge the appeal then you are fine. Not the other way round. In other words, you can't lodge the appeal first and then submit the new application. I know this, because I was advised to do this by a very reliable solicitor last year when my initial Tier 2 application was refused. Unfortunately we couldn't secure a new CoS to do this.

I'm afraid I don't know much about the ECAA visa. Someone else on the forum might be able to help.

Once again, good luck and all the best.