Immigration Debate

Tier 2 - Sponsored Skilled Workers - What an employer needs to know

On 27/11/08 the previous UK work permit scheme was replaced with the less snappily entitled “Points Based System, Tier 2 - Skilled Sponsored Workers”. Previously an employer would need to supply evidence to the United Kingdom Border Agency (UKBA) to demonstrate that it was a legitimate trading entity, that it had a genuine need to recruit the overseas national, and that there were no suitably qualified resident workers that could fulfil the role. Under the new PBS Tier 2 scheme, an employer must now apply for a licence to sponsor overseas workers wishing to apply to enter the UK. Once it has been granted a licence, it will then need to issue a Certificate of Sponsorship to any non-resident worker national it wishes to employ in the UK. The sponsored employee must then apply for a visa to enter the UK as a sponsored skilled worker under PBS Tier 2.

The Sponsorship Licence

A sponsorship licence application is completed online. Once the application is completed and payment has been made, the employer must then submit detailed documentation to UKBA to corroborate the information detailed in the application. The type of documentation to be submitted varies with the type of employer, e.g. private limited and public companies, charities, etc. All documentation to be submitted must be either an original document or a copy certified by a solicitor.

The fee for applying for a licence is determined by the size of the organisation. Once the licence registration is approved, an employer will be supplied with details of how to issue Certificates of Sponsorship.

Issuing the Certificate of Sponsorship

The shift of emphasis from UKBA issuing work permits to employers issuing Certificates of Sponsorship places an executive burden on an employer, it means that they become gatekeepers of the UK’s new immigration system with significant penalties if they abuse the system, or even just get it wrong. Employers must now keep very detailed records and can be audited by UKBA at any stage. Moreover, there are circumstances in which UKBA imposes an obligation on employers and managers to notify them of any breach of the immigration rules by an employee. Fines of up to £10,000 can be levied against the corporate body and individual complicit managers for any breach of the regulations. All in all, the new PBS Tier 2 is a potential minefield for employers. We strongly recommend that any company seeking to obtain a licence, or to issue a Certificate of Sponsorship to a prospective employee, takes legal advice before doing so.

So many factors are important when applying for any type of immigration benefit that you should almost always consult with an attorney before you file an application, and before you call this a statement of self-interest made by an attorney, please read on.

Here are a few cases I have seen:

Scenario 1: John Doe is a USC and wants to marry his girlfriend, Jane, who lives in China. His girlfriend has a valid tourist visa to enter the U.S. and she comes to the U.S. on this visa. She tells the officer at the point of inspection that she is coming to visit a friend and plans to return to China. During her visit, she marries John and he files for her green card so she does not have to leave the U.S. After a long wait, they get an interview notice and attend the interview. The Officer accuses Jane of improperly gaining admission into the U.S. by using her tourist visa, when she really intended to marry John at the time of her entry. Jane is now inadmissible and her very simple application has become complicated.

Scenario 2: Jane Doe has filed for divorce and has met a special person, John, she now wants to marry. Jane is certain the divorce is final, but does not confirm this before she marries John. John needs a green card so Jane files a family petition for him. After Jane has filed the petition for John, she receives a court order in the mail saying her divorce is final. Jane notices the date of the divorce decree was effective after the date she married John. All of a sudden Jane discovers she was married to more than one person at the same time. Does this affect the application she filed for John? Yes.

Scenario 3: John Doe is a permanent resident and noticed that his green card is expiring. He needs to file a simple application to get a new card. John does not know that his prior criminal arrest and conviction will have an impact on his status in the U.S. and files his application. John goes to his biometric appointment and is taken into custody and placed into removal proceedings. John is unprepared and shocked by what has happened.

What these scenarios show is that what one may view as unimportant or insignificant, can really be important and significant. Therefore, even if you do not think you need to hire an attorney, consult with an immigration attorney before you file your application. An experienced immigration attorney will ask you the right questions and give you important and relevant information that can make the difference between whether you have a successful case or not.

In general here is what you need to know to help your family become US citizens. This needs to be done with the assistance of a qualified immigration attorney due to the many recent changes is the USCIS rules.

The person applying for a green card or visa (termed a foreign national) must have a relative that is a US citizen or a lawful permanent resident. They must also be able to show proof of their status and proof of their relationship to the applicant. As you might expect, there are a lot of forms to be filled out during this process, and rather than risk filling out the wrong one and delaying the process, make sure you consult with a competent immigration lawyer. They know precisely which forms you will need, and when and where to file them on your behalf.

The person applying has to also prove their wage (income) is 125% above the poverty line for the whole family, including the applicant. If that isn’t possible then the applicant may become a joint sponsor with another relative. If that isn’t feasible, then the applicant’s assets may be considered.

If the applicant’s relative is a US citizen it must be proven that the applicant is a child under 21 years old; the married son/daughter; brother/sister of a US citizen; spouse or parent of a US citizen. In these instances, there are various qualifying ages that should be checked out by consulting with your immigration attorney.

If the applicant needed a sponsor and that sponsor is a US permanent resident, the sponsor has to prove the applicant is the wife or husband, or unmarried daughter or son. As you can see, this is not the easiest process to follow and there are a lot of areas where having immigration legal counsel will make the difference in the final outcome.

In order for a petition to be filed, you and your immigration lawyer need to be very thorough on your application forms. While this process from start to finish might be complex and cumbersome, the end result will be the happy reuniting of a family; something that most immigration lawyers strive for each day.