T1 Extension refused, employees hours, URGENT HELP PLEASE

[Faheemryk]

I got my initial T1 Entrepreneur visa 50K route on 20th January 2014. I was on Pre 6 April 2014 transitional arrangement.

I applied for my Tier 1 visa Extension on 18 January 2017. I got refusal letter yesterday. I have received points for all other criteria except for employment creation. Following is the exact wording of refusal letter.

In order to qualify for creating two full time jobs the employees you have submitted evidence for must have worked a combined total of 3120 hours. You have claimed a combined total of 3395 working hours for the three employees you have submitted evidence for. The maximum total hours an employee can contribute towards this figure is 130 hours per month, however the wage slips you have submitted show your employees working up to 165 hours per month. Therefore we have calculated that your three employees have worked a combined total of 2810 hours.
This is not sufficient to meet the requirement of creating the equivalent of two new full-time jobs which have each existed for at least 12 months.
We have therefore been unable to award points for Attributes in accordance with Appendix A.

Right from the beginning, I understood from the policy guidance that I am on transitional arrangement which means that I can continue to employ (and score points for job creation):

 one worker for 24 months;
 one worker for 6 months and one for 18 months;
 4 workers for 6 months each.

Please gurus and members, help me. Can I go for admin review? On the basis that I was on Pre transitional period, and I have created jobs and required hours according to the guidelines? What should be best possible course of action for me?

Your cooperation and advice is much appreciated.

[jafersadeq]

We are sorry to hear that,
Please clarify your employees' hours you submitted (in details).

[msaleemu]

I am sorry to gear about that.
Please clarify each employee start date,end date,number of hours per week,etc in order to understand your refusal point and for suggestion as much as i can.

[Atif786]

Sorry to hear that , I reckon you didn't get the refusal point
Completely , case worker has considered the combination of hours worked by all 3 employees however they considered only
Mini 120 and Maximum 130 hours per month to be full time , so either in the combination of 2 partime or 1 full time , they won't consider hours work beyond 130/ month .
I am suggesting based on the refusal point but other gurus would be able to put more clarity once they have the breakdown of your employment creation
All the best .

[Momi]

They refused you under old rules. Each employment should exist for 12 months.
Read the refusal again.
Check your employees payslip.
There is section call units and other one is for hours.

[Faheemryk]

Thank you so much guys for your reply. Much appreciated.

Employee 1 joined Jan 2016, left 30th Sep 2016
Employee 2 joined Sep 2016, working till now.
Employee 3 joined April 2016, working till now.

This is how employees worked.

Employee 1 UKVI Actual
considered hours
january 120 120
february 120 120
march 130 160
april 130 160
may 130 160
june 130 160
july 130 160
aug 130 165
sep 130 165

Employee 2

sep 130 160
oct 130 165
nov 130 165
dec 130 160

Employee 3

april 60 80
may 130 160
june 130 160
july 130 160
aug 130 160
sep 130 165
oct 130 165
nov 130 165
dec 130 160


Total 2770 3395

Actually UKVI considered 2810 hours. So, I was short by 310hours (3120-2810)

Please tell me what should I do

[marcnath]

Thank you so much guys for your reply. Much appreciated.

Employee 1 joined Jan 2016, left 30th Sep 2016
Employee 2 joined Sep 2016, working till now.
Employee 3 joined April 2016, working till now.

This is how employees worked.

Employee 1 UKVI Actual
considered hours
january 120 120
february 120 120
march 130 160
april 130 160
may 130 160
june 130 160
july 130 160
aug 130 165
sep 130 165

Employee 2

sep 130 160
oct 130 165
nov 130 165
dec 130 160

Employee 3

april 60 80
may 130 160
june 130 160
july 130 160
aug 130 160
sep 130 165
oct 130 165
nov 130 165
dec 130 160


Total 2770 3395

Actually UKVI considered 2810 hours. So, I was short by 310hours (3120-2810)

Please tell me what should I do

This is tough. You do not meet the requirement, which is effectively 52 weeks, each of 30 hours minimum.
It is not TOTAL hours
Even if I just count the months, you have only submitted 22 months, of which 3 months are below 130.
So an AR is not going to help.
First check how many weeks do you have in total that are more than 30 hours each (looks like around 93 weeks)
You said you got you Visa on 20th Jan. I assume it was valid for 3 years 4 months, so it was valid until 20th May 2017.
As you still have your employees working, the best approach is to submit a fresh application, now being very clear about meeting 52 weeks with 30 hours each - which should not be a problem as you are very close. it looks like you are short of about 11 weeks, so all you need is about 5 weeks per employee.
Hope you have maintained the amount needed for the maintenance

[Faheemryk]

Thank you so much guys for your reply. Much appreciated.

Employee 1 joined Jan 2016, left 30th Sep 2016
Employee 2 joined Sep 2016, working till now.
Employee 3 joined April 2016, working till now.

This is how employees worked.

Employee 1 UKVI Actual
considered hours
january 120 120
february 120 120
march 130 160
april 130 160
may 130 160
june 130 160
july 130 160
aug 130 165
sep 130 165

Employee 2

sep 130 160
oct 130 165
nov 130 165
dec 130 160

Employee 3

april 60 80
may 130 160
june 130 160
july 130 160
aug 130 160
sep 130 165
oct 130 165
nov 130 165
dec 130 160


Total 2770 3395

Actually UKVI considered 2810 hours. So, I was short by 310hours (3120-2810)

Please tell me what should I do

This is tough. You do not meet the requirement, which is effectively 52 weeks, each of 30 hours minimum.
It is not TOTAL hours
Even if I just count the months, you have only submitted 22 months, of which 3 months are below 130.
So an AR is not going to help.
First check how many weeks do you have in total that are more than 30 hours each (looks like around 93 weeks)
You said you got you Visa on 20th Jan. I assume it was valid for 3 years 4 months, so it was valid until 20th May 2017.
As you still have your employees working, the best approach is to submit a fresh application, now being very clear about meeting 52 weeks with 30 hours each - which should not be a problem as you are very close. it looks like you are short of about 11 weeks, so all you need is about 5 weeks per employee.
Hope you have maintained the amount needed for the maintenance

Thank you so much sir for your reply.
My visa was valid for exactly 3 years, not for 3 years and 4 months. It was valid from 20 Jan 2014 to 20 Jan 2017.

UKVI didn't return my passport and other documents. Refusal letter consists of six pages. Can I make a fresh application? If yes then how can I do that and what's the procedure. Refusal letter mentioned about admin review only.

One more option that my accountant has told me about, is to claim hours for employee 2 from June 2016, that will require us to notify Hmrc, amend our accounts. Accountant said we can say that we could not upload three months of employee two because of software error. I possibly have to pay some penalty to hmrc because of this error. We'll have to amend and file updated accounts. Lots of work. This isn't the best option but my accountant is saying that we can fulfill home office requirement and take a chance.

[marcnath]

Thank you so much sir for your reply.
My visa was valid for exactly 3 years, not for 3 years and 4 months. It was valid from 20 Jan 2014 to 20 Jan 2017.

Makes it tough, I am sorry to say. You can claim employment right until 20th Jan. It looks like you only claimed until 31st Dec so far. That will give you a few more weeks.

UKVI didn't return my passport and other documents. Refusal letter consists of six pages. Can I make a fresh application? If yes then how can I do that and what's the procedure. Refusal letter mentioned about admin review only.

You can make a fresh application and refer to the documents that are already with UKVI.

One more option that my accountant has told me about, is to claim hours for employee 2 from June 2016, that will require us to notify Hmrc, amend our accounts. Accountant said we can say that we could not upload three months of employee two because of software error. I possibly have to pay some penalty to hmrc because of this error. We'll have to amend and file updated accounts. Lots of work. This isn't the best option but my accountant is saying that we can fulfill home office requirement and take a chance.

That seems to one of the options. But it will be tough to convince the CW even if HMRC accepts it. Make sure you submit all the evidence of the salaries you paid to the employee from June onwards - preferably even his/her bank account showing the transfers and so on. Maybe signed letters from the employee confirming that and so on. Even if it has been corrected when the payroll was closed for the year in April, it would be justifiable. But a correction after you got a rejection is likely to be seen as very suspect.

[Faheemryk]

Makes it tough, I am sorry to say. You can claim employment right until 20th Jan. It looks like you only claimed until 31st Dec so far. That will give you a few more weeks.

Once again, thank you for your advice.

[Faheemryk]

Gurus .... members .... any other suggestion... please ...

[sm12]

If you make a fresh application, you can include the extra months that were covered under section 3C while you were waiting for a reply from UKVI.
That will help you meet the requirement.

[marcnath]

If you make a fresh application, you can include the extra months that were covered under section 3C while you were waiting for a reply from UKVI.
That will help you meet the requirement.

I am not sure if that is valid.

The law states :
Where your last grant of entry clearance or leave was as a Tier 1 (Entrepreneur) migrant, the jobs must have existed for at least 12 months during the period for which the most recent leave was granted.

Section 3C is not part of the period for which the most recent leave was granted.

sm12 - please feel free to correct me if you have some other experience.

[Momi]

When you are completing 10 years? In next 6-15 months?

[sm12]

If you make a fresh application, you can include the extra months that were covered under section 3C while you were waiting for a reply from UKVI.
That will help you meet the requirement.

I am not sure if that is valid.

The law states :
Where your last grant of entry clearance or leave was as a Tier 1 (Entrepreneur) migrant, the jobs must have existed for at least 12 months during the period for which the most recent leave was granted.

Section 3C is not part of the period for which the most recent leave was granted.

sm12 - please feel free to correct me if you have some other experience.

Hi Marcnath

There was a case here in which one of the members brought this up and referred to a successful second application that relied on the leave extended by section 3C.
I will conduct a search to find that thread and post a link here.

[marcnath]

If you make a fresh application, you can include the extra months that were covered under section 3C while you were waiting for a reply from UKVI.
That will help you meet the requirement.

I am not sure if that is valid.

The law states :
Where your last grant of entry clearance or leave was as a Tier 1 (Entrepreneur) migrant, the jobs must have existed for at least 12 months during the period for which the most recent leave was granted.

Section 3C is not part of the period for which the most recent leave was granted.

sm12 - please feel free to correct me if you have some other experience.

Hi Marcnath

There was a case here in which one of the members brought this up and referred to a successful second application that relied on the leave extended by section 3C.
I will conduct a search to find that thread and post a link here.

That would definitely be very positive. There is a very high chance of success in this case as it is only going to be short of 2-3 weeks.
Anyway, it is worth trying as that is the only real option left.

[sm12]

Hi Marc
In the thread linked below, SeaSky brought this up and said that he knows two people who successfully extended based on employment created while on section 3C, as the section extends the period of leave.
I think there was one more thread about this. If I find that one, I will post it.

uk-tier-1-entrepreneur-visas/entreprene ... e#p1463698

Only option that comes to my mind is apply in June. Take as long as possible for biometrics. Hope your decision is in November (or earlier and do AR to buy more time) apply again in November (keep your November employee employed till then!)

I would consider this only if you are a strong entrepreneurial story.

This is based on the assumption that job creation is accepted on section 3C, even though the rules say that jobs must have been created during your last grant of leave !!

Fair point. Zimba. I know of two cases that this was accepted (but they were very strong applications with over £1m invested and technology focused)

We also know that on this board many people get declined at extension for a myriad of reasons (missing signature on DL on accounts for example), then reapply and get extended. They don't get 3C was last period "thrown at them"

Also is 3C a separate period of leave or an automatic extension of the first period?

[tier1in2014]

If you had any employees working for you while you were waiting for ext output you can use them in you fresh application . That employment will be valid under sec 3c . Your accountants option might acceptable with hmrc but it will be hard to explain that to case worker as there will be no matching transaction in bank statement for those wages . Best to apply new application with all required recent documents . Looks like you were short by 2.5 months .

[Faheemryk]

When you are completing 10 years? In next 6-15 months?

10 years are too far. March 2020.

I first came to UK in March 2010.

[Mrchaany]

Section 3c period can be easily covered your initial employment points because this period employement cannot be use for ILR.
Which means after successfully extension any tier 1 entrepreneur via holder will again show two full time post. If u understand my point so ok other wise I will explain.

[marcnath]

The law states :
Where your last grant of entry clearance or leave was as a Tier 1 (Entrepreneur) migrant, the jobs must have existed for at least 12 months during the period for which the most recent leave was granted.

Section 3C is not part of the period for which the most recent leave was granted.

Having looked at the other threads and reviewed the Immigration law text that states - "The leave is extended by virtue of this section... " I think the underlined statement above was not correct.

It seems logical that Section 3C, having extended the leave, can be considered to be part of the period of leave granted.

That should be a big relief of OP Faheemryk as the job creation points can be easily met.

I hope the maintenance fund has been left in the bank account for the period.

[Faheemryk]

The law states :
Where your last grant of entry clearance or leave was as a Tier 1 (Entrepreneur) migrant, the jobs must have existed for at least 12 months during the period for which the most recent leave was granted.

Section 3C is not part of the period for which the most recent leave was granted.

Having looked at the other threads and reviewed the Immigration law text that states - "The leave is extended by virtue of this section... " I think the underlined statement above was not correct.

It seems logical that Section 3C, having extended the leave, can be considered to be part of the period of leave granted.

That should be a big relief of OP Faheemryk as the job creation points can be easily met.

I hope the maintenance fund has been left in the bank account for the period.

Thank you so much sir. Thats a big relief. Yes I have maintained funds in my account. And employees were being continuously paid every month. In this way I can meet requirement.

[Momi]

You applied alone or with dependants?

[zimba]

The HO calculations are spot on correct. You failed to create 104 weeks of full time employment and your refusal has nothing to do with transitional arrangements. Fresh application is the only option you have.

[Faheemryk]

You applied alone or with dependants?

I applied only for myself.