Tier-2 Resident Labour Market Test Exemption

Only for UK Tier 2 (Employer Sponsored) points system Tier 2

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Tier-2 Resident Labour Market Test Exemption

Postby tanveer2010 » Tue Nov 16, 2010 6:07 pm

Hi All,

In a v.critical situation at the moment, my situation is as follows :

I am :

a) a tier-4 dependant (student dependant)
b) have been working for my present employer for over a Year now
c) Salary is 29000+
d) have maintained £800 for the last 5months
e) Have an IELTs General Module passed with 6.5
f) My employer is willing to provide me a COS (they are enrolling on the sponsorship register at the moment).

When I came across this vacancy via the Local News website in our town in the UK, I applied for it and went through two interviews and finally got the job.

My employer is now registering on the sponsorship register (they have applied for it) :

Do I need to go through a resident labour market test or I can get exemption as I am working on a good position "Systems Engineer" for over a Year (12Months) now ?


EDIT : This job was advertised on or around October 2009 - if that makes any difference ?


Do I need to go back and apply ?

I read somewhere on this forum, that one can still conduct a resident labour market test while the sponsor is registering on the Sponsorship register - is this possible ? if YES - then what are the steps required !

I will be really grateful for your support on this - as this is very critical !

Thank you so much for reading !!!
Regards
Tanveer
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Postby sushdmehta » Tue Nov 16, 2010 6:42 pm

Whether or not you have been working with current employer for 6 months or more becomes irrelevant if your employer's CoS allocation is zero and, therefore, a CoS has to be applied for, by A-rated sponsors, under exceptional consideration. Reading this post will be useful.

See also The resident labour market test. A job advertised / RMLT conducted more than 6 months before the CoS application may not be valid.

Assuming a CoS is issued, you may apply for leave to remain as Tier 2 migrant from within the UK.


regards
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Postby tanveer2010 » Tue Nov 16, 2010 7:55 pm

Hi Sushdmehta,

Thank you so much for your prompt response.


Company is A Rated and they can get the COS (as they haven't used any before and there other business units are already on the register with A Rating).

----

The only issue I am worried is :

That I am a Tier-4 dependant, and according to the Homeoffice website :

http://www.ukba.homeoffice.gov.uk/emplo ... t/#header2

I am not exempted by a RLMT :
ii) Existing employees
You do not need to complete a resident labour market test if the migrant is already employed by you in the same job, and currently has permission to stay in the UK under:
the post-study worker category of Tier 1;
the International Graduates Scheme;
the Fresh Talent Working in Scotland Scheme; or
the Science and Engineering Graduates Scheme.
Exemption (ii) applies only if:
you have employed the migrant in the UK continuously for at least 6 months immediately before they switch into the Tier 2 (General) category, although they do not need to have been in the same job for the full 6 months;

They don't mention in the above that a Tier-4 can be exempted if they are working for the employer for the last 6months or a year.

My Questions :
a) Do you think, If a COS is issued to me, I still can apply for a Tier-2 General from within the country?

b) How can they conduct a RLMT now when I am already employed ?

c) How will I get myself exempted from the RLMT or am I exempted also ? The employer is very very well reputed - one of the Global Leaders in what they do - do you think there can be a exceptional circumstances kind of thing ?

I have read the links you mentioned - Thank you so much !!

Will be grateful for your assistance once again and please excuse me of my questions - just v.worried here ...

Regards
Tanveer
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Postby sushdmehta » Tue Nov 16, 2010 8:24 pm

If a CoS is applied for under exceptional consideration, as per the policy guidance, there is no exemption from RMLT unless it is for a shortage occupation.

I guess your employer, not matter what their reputation is, will have to follow RMLT procedures and prove that no EEA / home candidate is available in the UK for the post that you currently hold and that there is no candidate other than yourself to continue in the post!


regards
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Postby tanveer2010 » Tue Nov 16, 2010 8:53 pm

Hi Sushdmehta,

Thanks once again for a prompt reply, so basically :

a) My employer needs to conduct a RLMT now inorder for them to sponsor my Tier-2

b) is there no way I can be exempted, i mean a Tier-4 dependant exempted from RLMT if they are working for a Year ?

Thanks for clearing up and really grateful for your prompt responses.

Kind Regards
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Postby clippedw » Wed Nov 17, 2010 9:24 am

sushdmehta wrote:If a CoS is applied for under exceptional consideration, as per the policy guidance, there is no exemption from RMLT unless it is for a shortage occupation.

I guess your employer, not matter what their reputation is, will have to follow RMLT procedures and prove that no EEA / home candidate is available in the UK for the post that you currently hold and that there is no candidate other than yourself to continue in the post!


regards


To solve the confusion my employer emailed them. Below is the email and their response. I have of course deleted my employers name. This is in fact very confusing.


From: Sponsorship PBS enquiries [mailto:SponsorshipPBSenquiries@UKBA.gsi.gov.uk]
Sent: 16 November 2010 17:10
To:
Subject: RE: Migrant worker sponsorship application

Dear xxxx,

Thank you for your email.
You are correct for a Post Study Worker moving to Tier 2 you do not need to perform the Residential Labour Market Test.
You should use the free text box at the side of the question to explain why they have met this requirement.
I hope you find this helpful,
________________________________________
From:
Sent: 15 November 2010 11:54
To: Sponsorship PBS enquiries
Subject: Migrant worker sponsorship application
Hi,

I have just applied for a sponsorship licence to enable me acquire a tier 2 general sponsorship certificate for a migrant worker.

She is currently on a tier 1 post study work visa and has been working continuously for my company since March this year. The guidelines on your website state that in this situation, I am exempt from performing the resident labour market test. However, I noticed that the form for the initial Certificate of sponsorship request requires details of where and when the vacancy was advertised. Can you please clarify if this exemption still holds? If it does then I assume we do not need to fill that section of the form?
Last edited by clippedw on Mon Feb 07, 2011 4:46 pm, edited 1 time in total.
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Postby tanveer2010 » Wed Nov 17, 2010 9:35 am

Hi Clippedw,

Thank you for your input, I am on a Tier-4 Dependant - which is also legally entitled to work full time by the HO.

a) Can you or sushdmehta advise as to how can I fullfil the RLMT now ?
b) Shall I try to digg up the adverts my company would have placed last year when they advertised the job ?
c) Shall we re-advertise the job for 4 weeks ?

will be grateful for your input !!!
Thanks !
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Postby clippedw » Wed Nov 17, 2010 9:49 am

tanveer2010 wrote:Hi Clippedw,

Thank you for your input, I am on a Tier-4 Dependant - which is also legally entitled to work full time by the HO.

a) Can you or sushdmehta advise as to how can I fullfil the RLMT now ?
b) Shall I try to digg up the adverts my company would have placed last year when they advertised the job ?
c) Shall we re-advertise the job for 4 weeks ?

will be grateful for your input !!!
Thanks !


I have no clue and wouldn't want to misinform you in any way. I'll suggest you let your employers email them with your questions. Then you will have written evidence should you need that in future. I have just told my employer to email them once more to clarify and in the COS application we are going to include their emails. Maybe sushdmehta can advise you on this?
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Postby tanveer2010 » Wed Nov 17, 2010 9:55 am

Thanks clippedw for your prompt response - just keep an eye if you come across any thing like I am in at the moment (a Tier-4 dependant - student dependant).

I will let my employer know to do this now, also if that is not a hassle if you are emailing them again can you ask this as a separate question - only if it is not a problem for you. will help.

on my way to see my employers to get this through to the HO to seek answers.

Thanks so much !!
Best of luck with your case !!
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Postby clippedw » Wed Nov 17, 2010 10:04 am

tanveer2010 wrote:
I will let my employer know to do this now, also if that is not a hassle if you are emailing them again can you ask this as a separate question - only if it is not a problem for you. will help.


He has already sent the email :(...sorry. They will definitely respond if they receive an email from an employer though so try it. Good luck
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Postby sushdmehta » Wed Nov 17, 2010 11:40 am

When sending email to enquire exemption from RMLT please ensure that the employer states clearly whether or not a CoS is being requested for under exceptional consideration and whether or not the job is for a a shortage occupation.


regards
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Postby clippedw » Wed Nov 17, 2010 11:54 am

sushdmehta wrote:When sending email to enquire exemption from RMLT please ensure that the employer states clearly whether or not a CoS is being requested for under exceptional consideration and whether or not the job is for a a shortage occupation.


regards


Thanks Sushdmehta, That is exactly what my employer stated in his second email so we are just waiting for a response now. Will keep you updated
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Postby tanveer2010 » Wed Nov 17, 2010 12:00 pm

sushdmehta wrote:When sending email to enquire exemption from RMLT please ensure that the employer states clearly whether or not a CoS is being requested for under exceptional consideration and whether or not the job is for a a shortage occupation.


regards


Hi Sushdmehta,

Thank you so much ! for your replies and clarifications !!!!!!

So, what you meant to say is that, when my employer / HR emails the HO, they should clearly mention the following points :

That I am a Tier-4 dependant (allowed to work),
working on my present job for over a year now,
needs a tier-2 general,
request to exempt the RLMT in this case - the job was initially advertised for 4 weeks last year on gumtree and a local news paper website (we are trying to pull up the advert details from last year as a proof).

The above points in a email should only be sent once they are on the sponsorship register, can they NOT just make an enquiry before requesting a COS ? and mention that they would request a COS on exceptional circumstances for this one ? just to be clear.

Most grateful !!!!
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Postby sushdmehta » Wed Nov 17, 2010 1:08 pm

IMHO, an enquiry can be made anytime.


regards
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Postby tanveer2010 » Wed Nov 17, 2010 4:18 pm

Thanks sushdmehta,

Thank you so much for all your replies and support !
My HR will do an initial inquiry and meanwhile I consulted a lawyer too.

The lawyer says : that if your employer is globally recognized, have good relations with HO, the case may be considered in the circumstances I am in, and they May exempt a RLMT.

He also emphasized that if they aren't willing to exempt, your employer will have to advertise the JOB and re-hire you or something.

---

I know you are not HO but what do you think of this, do you think HO may consider that the member of staff is arleady working on a business critical product and it will be a waste of companys' time to invest into a new employee etc etc. ?

What are your thoughts on re-advertising the job for RLTM ?

wish me luck guys - !!! I hope it gets through.

Thanks Again !
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Postby avjones » Thu Nov 18, 2010 12:34 am

Sorry if it's me being thick, but why do you need Tier 2 at all? You have the right to work as a Tier 4 dependent, you said?
Amanda Jones

I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.
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Postby tanveer2010 » Thu Nov 18, 2010 10:12 am

Thanks for your reply, because my Tier-4 is expiring soon and I need to get a Tier-2 to carry on working - any suggestions !

Kind Regards
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Postby clippedw » Thu Nov 18, 2010 4:52 pm

clippedw wrote:
sushdmehta wrote:When sending email to enquire exemption from RMLT please ensure that the employer states clearly whether or not a CoS is being requested for under exceptional consideration and whether or not the job is for a a shortage occupation.


regards


Thanks Sushdmehta, That is exactly what my employer stated in his second email so we are just waiting for a response now. Will keep you updated


[b]update:


"The exemption is still applicable. However you are not guaranteed to get a Certificate to allocate to the individual. The addendum at the front of the guidance below indicates what priority will be given to allocation requests for New Posts.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary"
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Postby amsin123 » Fri Oct 07, 2011 9:40 am

Hi tanveer2010,
I am in a similar situation now. I am currently a tier-2 dependant and I have been working for a company for over an year now. My company is now ready to sponsor me.
I have the same questions you had:
1. Do I need to go back to my home country and apply?
2. Does my employer need to do a resident labour market test although I have already been employed by them?

Can you please advise on what you finally had to do to get your visa?

Thanks.
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Tier4 Dependent to Tier2 with in UK

Postby UKkumar » Tue Apr 03, 2012 10:46 pm

Hi all
I am having same problem and a lot of confusion.

My employer is ready to give tier2 work permit after 5 months of my continuous work.

1) can he apply now because i am working for him already since 5 months.?
2) do he need to do RLMT.?
3) RLMT before the COS application or after.?
4)Can i include my wife in my tier2 application (she have tier4 visa) ?

Thanks
kumar
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