Tier 2 VISA Refused - Employer is not giving new COS (Urgent

[kumar1234]

Hi All,

I had applied for a Tier 2 General Visa for extension 5 years 0n April 29th 2014, which was refused due to insufficient salary. Actually I have got salary at junior level, but when I applied for 5 years VISA UKBA considered me as a Senior developer, so my visa got refused. Either I or my company was not aware of this rule until my VISA gets refused on June 5th 2015.

I had successfully appealed in the First Tribunal court (Jan 2015) against this refusal but unfortunately for me, UKVI (UK Visas & Immigration) have counter appealed this decision.

I have asked my employer to give me the new COS (certificate of sponsorship) so that I can withdraw my appeal and go for new application for 3 years extension. But they have refused to give me the new COS saying that

• Not got continuous leave to remain as your visa expired in May 2014 and we are employing you on the basis of his appeal being considered and a positive ECS check until November 2015
• If you withdraw your appeal you will work for us with no right to work.
• Before we issue a certificate of sponsorship to an employee we need to ensure that they have a valid visa and your visa expired in May 2014 and has no continuous leave to remain.

I have contacted UKBA employer helpline and customer service, they said It’s completely legal to generate a brand new COS (certificate of sponsorship) from my employer (for 3 years) as long as I met the minimum new entrant salary range. This is because the initial Tier-2 General application was made before my Post Study Work visa (Tier-1) had expired and for whatever the reason my current application for Tier-2 is still in progress; So Tier-1 rules will still be applicable for me which makes my company able to generate a new COS without going through the RLMT (Resident Labour Market Test) process. They clearly told me that the current COS is already in use, and hence suggested me get a new one from my employer.Post receipt of the new COS, I could withdraw the current appeal and submit a new application (within 28 days of the appeal withdrawal) opting for a 10 day premium appointment service. I will not be able to work till I secure my new visa.

But my company refused to give me new COS again with same reasons. I have got confused with all these as my company said that UKBA told to my HR that ‘they are unclear in confirming that we can issue a ‘new’ certificate of sponsorship whilst you do not have a current visa’. But Boarder Agency Employer Helpline advised me that I can go for new application within 28 days after I withdraw my appeal. It is legal for company to give a new COS as my initial VISA application made in time, so still my previous VISA rules is applicable for me.

My company is not ready to ask UKBA for the clarification. How can i confirm this to my employer. is there any way to get confirmation from ukba through email. so that i can show to my employee. Please help me on this. it is very urgent.

[kumar1234]

Hi i have got the same problem my visa got refused due to insufficient salary. i am on appeal now. my psw visa expired last year. i am asking my employer to give me new cos, so i can withdrawing my appeal and make new application with in 28 days. but my employer saying that it is not legal for them to give a new cos as my previous visa already expired and if i withdraw my appeal, i wiil have no right to work in the uk. on that basis they are refusing to give new cos.

what is the section 7.9 of codes of practise.How can i explain to my company?

[manci]

Hi i have got the same problem my visa got refused due to insufficient salary. i am on appeal now. my psw visa expired last year. i am asking my employer to give me new cos, so i can withdrawing my appeal and make new application with in 28 days. but my employer saying that it is not legal for them to give a new cos as my previous visa already expired and if i withdraw my appeal, i wiil have no right to work in the uk. on that basis they are refusing to give new cos.

your employer is right that when you withdraw your appeal you will have to stop working as your leave under section 3C ceases. However, you can make an application within 28 days with a new unrestricted CoS and I don't see why your employer couldn't assign a new CoS to you. Ask them to check with the UKVI employer helpline 0300 123 4699. (perhaps the employer just doesn't want to pay you a higher salary and this is just an excuse?)

what is the section 7.9 of codes of practise.How can i explain to my company?

[kumar1234]

Thanks for your reply manci.

Actually i have got enough salary for 3 years application. that's not a problem. the only reason is my employer's solicitor told them that it's not legal for them to assign a new COS when i have no right to work.

They told me that they have contacted UKBA, but they are unclear in this situation. but when i call the UKBA employer helpline they are saying that's not a problem. i don't know how to explain them.

[geriatrix]

I think the employer is acting for their own advantage.

The day you withdraw the appeal you will become an overstayer and will not have any right to work in UK until a leave to remain application is granted. So, the employer is trying to avoid that situation ( send you on leave for an unknown period, with uncertainty about your legal stay in the UK, leaving them with 1 less resource).

I believe your solicitor is aware of the fact that a period of overstay of a maximum 28 days is allowed for a PBS migrant to make a new application for leave to remain. But they aren't interested in giving you a CoS because from the day you withdraw your appeal until the day a leave on an application submitted within 28 days of withdrawing appeal is granted, the employer will have to put you on mandatory leave and that is what they don't want to do. And, if your application is refused again for some reason .. for them the cycle continues !!

[sk23]

hi, i have a similier kind of situation. my visa refused because of Labour market test.. my company didnt performed LMO test before issuing me COS.. but now my company start performing LMOT and its only 18 days over and my admnistrative review have been rejected as well. i have now 5 days to apply new application or LeaVE THE COUNTRY..
I spoke with a consultant he asked me to apply for FLR(O) and then swap the application to Tier2.. but it looks risky as FLR(O) is bad impact on immigration history..
second option is apply for Tier-2 again and when LMO Test time is over issue new COS from company and send them as thery havent found any suitable applications in these 18 days..
my question is it possible if my company request the approval to UKVA before the 28 days period.. as its a some kind of process which every company has to go through before issuing COS..
urgent suggestions needed plz..
thanks in advance..
sat

[ff88]

hi, i have a similier kind of situation. my visa refused because of Labour market test.. my company didnt performed LMO test before issuing me COS.. but now my company start performing LMOT and its only 18 days over and my admnistrative review have been rejected as well. i have now 5 days to apply new application or LeaVE THE COUNTRY..
I spoke with a consultant he asked me to apply for FLR(O) and then swap the application to Tier2.. but it looks risky as FLR(O) is bad impact on immigration history..
second option is apply for Tier-2 again and when LMO Test time is over issue new COS from company and send them as thery havent found any suitable applications in these 18 days..
my question is it possible if my company request the approval to UKVA before the 28 days period.. as its a some kind of process which every company has to go through before issuing COS..
urgent suggestions needed plz..
thanks in advance..
sat

According to my knowledge 28 days must be completed for RLMT to be valid. Plus I think I am not 100% sure but I think if u overstay not more then 28 days its fine. You have 5 days plus 28 more days so total 33 days u can stay in country. But keep in mind you will probably need new rcos and nowadaysmin points for successful rcos has gone up. Double check the info though as I am not 100% sure

[sk23]

no man, i got refusal on 11th aug and i recieved this post on 18th Aug. and UKBA gave me 14 days to apply Admistrative review. so my company published job on 23rd Aug.. and i applied for admnistrative review on 25th aug hoping UKBA will take atleast 2-3 weeks to ddecide and by the time 28 days of LMOtest will be completed. but they replied within 1 week with rejection on 2nd sep. and gave me 14 calander days to submit new application or leave out. so i got time till 15th september and 28 days of labour market will be completed on 21st september.. overall 6 days short.. Can i apply for Tier2 visa online and submit my new RCOS within 14 days.. ? as it wd be mentioned on COS on what date it was issued....
i dont want to go for FLR(O)..with FLR(O) i can buy time but it will be bad impact on history as i have already completed 8+ years in UK and could effect my ILR. dont know what to do.

[Tier2_Hold]

no man, i got refusal on 11th aug and i recieved this post on 18th Aug. and UKBA gave me 14 days to apply Admistrative review. so my company published job on 23rd Aug.. and i applied for admnistrative review on 25th aug hoping UKBA will take atleast 2-3 weeks to ddecide and by the time 28 days of LMOtest will be completed. but they replied within 1 week with rejection on 2nd sep. and gave me 14 calander days to submit new application or leave out. so i got time till 15th september and 28 days of labour market will be completed on 21st september.. overall 6 days short.. Can i apply for Tier2 visa online and submit my new RCOS within 14 days.. ? as it wd be mentioned on COS on what date it was issued....
i dont want to go for FLR(O)..with FLR(O) i can buy time but it will be bad impact on history as i have already completed 8+ years in UK and could effect my ILR. dont know what to do.

Hi SK23, i am in similar situation as yours. what have you done regarding your visa? please can you advice?