Employment history leading up to Fiance Visa Application

Hello all,

TL;DR: Does it matter if the sponsor was unemployed before the current job, if the current job meets the financial requirement for Category A. That is, the current job (it's non-salaried) pays a little over 18.600 per year, and we weren't going to apply until we had at least 6 monthly payslips showing 1550+ per month. We have been told that because the sponsor was unemployed before this current job, they'll be using the Cateogry B method, and looking back 12 months from the date of application (and obviously we won't meet the requirement, as that would include 5 months of unemployment).

For all the juicy details.. 

-I am a US cit., met my lovely fiance in the US last summer. She was in the US visiting her sick father when we met, bittersweet circumstances.
-As her passport stamp to the US ran out, we decided we couldn't possibly be apart, and so I moved to the UK, and am now coming up on my last month of my own 6-month passport stamp.
-We started looking into a visa for me early on, and decided we definitely love each other enough to marry, and have indeed become engaged and have a wedding planned (already paid deposit) for early Feb. 2020.
-Before coming to the US, my fiance had been a university student in Nursing. When she found out how gravely ill her father was, she left her nursing program (putting it on a 1-year hiatus) and came to the states (and of course, did not work in the states).
-Upon coming back to the UK, we coasted on a little support from her mum, some of my money, and some shifts at a previous employer, filling in gaps in their schedules (being paid at an hourly rate).
-To earn enough to qualify as my sponsor, my fiance had been counting on working "bank" shifts for the NHS, picking her own hours, and being paid hourly.

Now, the first solicitor we visited, in Feb 2019, said that these NHS bank-shifts wouldn't do, because the employer wouldn't be able to truthfully write a letter stating that my fiance would be bringing in x-amount, as it is variable and entirely up to my fiance to schedule enough hours to meet the income requirement. So for example, in the months leading up to the application, she could book enough hours for herself to meet the threshold, and after the application, completely slack off and then earn say well below the amount. So it was suggested this wouldn't do - she needed to be employed on a contractual basis, with a guaranteed number of hours. This lawyer also said that the monthly income needed to be 1550 or more, and not a cent less. She suggested that if we had 6 payslips, each one 1550 or more, that would be enough. So we (myself, my fiance, and the solicitor) decided that my fiance would find some contractual work that would pay at least 1550 per month, and then when she had 6 consecutive payslips with at least that amount on them, we would go back to that solicitor and the solicitor would build our application (of course we'd be collecting supporting docs leading up to that meeting).

Indeed on March 4 my fiance got a job paying slightly over the 18,600 annual amount. She is paid per hour worked, and has been paid:
1518 in March
1560 in months April - June
and will be paid at least as much in the following months

As it is drawing near my date of departure due to the stamp running out (Aug 8 I leave, 4 days before the stamp expires) and also we planned on applying not so long after (once my fiance has 6+ payslips meeting the requirement), we have really started contacting solicitors again (getting second-opinions, the first solicitor actually seemed very unsure about some things and a little disorganized, which was a put-off)

The first solicitor I called said that the home office would be checking that my fiance was currently earning a rate above 18.600/year, and would also check the 12 months prior to the application date to see that in that time, 18,600 had been earned.

This obviously won't do, as from October-February my fiance was unemployed, and for the year preceding, had been a student.

Now this put us in a panic, and I have read the Appendix FM SE high and low, as well as many posts that I could find, and it sounded like this solicitor was confused, thinking that my fiance will have been with her employer less than 6 months at the time of application, and that consequently, we would be using Category B, as opposed to Category A.

So I contacted another solicitor, and after a very annoying back and forth, talking to a secretary who kept having to leave the phone to ask someone who could actually answer questions, I was told a similar story, with the added detail that it is because my fiance was unemployed prior to this current job. Namely, that despite the fact that we wouldn't apply until we met the Category A requirement (that is, using the Category A non-salaried calculation method, where her gross income of 6 months of payslips is divided by 6, and multiplied by 12), because she was unemployed before the months of payslips that we will submit, the decision-makers would be counting back 12 months from the date of application, as though we were using Category B.

Now, we were NOT going to use Category B, because we aren't applying before she has been with the same employer at least 6 months.

The implication is, that despite only 6 months of payslips being evaluated for Category A, that the Home Office will use the method from Category B, on the basis that prior to her current employer, she was unemployed.

But this seems ludicrous, as nowhere is specified (that I saw...) such a thing, and further, why would it be different because she was unemployed before her current job? She could have been employed, but at a much lower rate previous to the current job, and as far as I can see, it wouldn't matter, as long as the job she has held for at least 6 months pays above the specified rate.

So...is there some huge, painful detail that I'm missing, or are these solicitors really misunderstanding something?

HELP!

 

Thank you!

Hello all,

TL;DR: Does it matter if the sponsor was unemployed before the current job, if the current job meets the financial requirement for Category A. That is, the current job (it's non-salaried) pays a little over 18.600 per year, and we weren't going to apply until we had at least 6 monthly payslips showing 1550+ per month. We have been told that because the sponsor was unemployed before this current job, they'll be using the Cateogry B method, and looking back 12 months from the date of application (and obviously we won't meet the requirement, as that would include 5 months of unemployment).

No, that's not necessarily true.

There are two possible categories you can apply under, depending on which your employment and income meets. In one case, their previous employment is relevant and in the other case it is not.

Also, if she is non-salaried, her payslips do not have to be £1,550 or more... you just have to show that her annual AVERAGE income is at least £18,600.

The two categories are:

The sponsor can use Category A if:
- they have been with their current employer and have been earning £18,600 or more for AT LEAST 6 months (so £1550 before tax each month, if they are salaried)
and they provide:
- 6 months of payslips and bank statements to prove this, plus a letter from the current employer

The sponsor can use Category B if:
- they are earning at least £18,600 with their current employer, BUT they have been with that employer for LESS THAN 6 months, OR their income is variable each month, but overall they average £18,600 per year.
AND
- they have earned a TOTAL of £18,600 before tax, from any and all jobs, in the last 12 months (there can be periods of unemployment in those 12 months, as long as the total earned is at least £18,600)
and they provide:
- 12 months of payslips and bank statements to prove this, plus a letter from the current employer

So, if your sponsor currently earns at least £18,6000, but has only been employed for 5 months so far, she can either:

- Wait until she has been with her current employer for 6 months and apply under Category A

- If she has earned at least £18,600 in the last 12 months, she can apply under Category B before she has been at the job for 6 months.

-As her passport stamp to the US ran out, we decided we couldn't possibly be apart, and so I moved to the UK, and am now coming up on my last month of my own 6-month passport stamp.

Just for the record, you haven't MOVED to the UK, because that is illegal to do as a visitor. You are not LIVING in the UK, you are simply VISITING the UK temporarily for a 6-month period, before returning to your life in the US.

-We started looking into a visa for me early on, and decided we definitely love each other enough to marry, and have indeed become engaged and have a wedding planned (already paid deposit) for early Feb. 2020.

I assume you are planning to marry in the UK? Have you considered her coming to the US and marrying there? It's much, much quicker and easier to marry in the US (no visa needed for her), and you can then apply directly for a spousal visa instead of a fiance visa, which will save you about £1,000 in visa fees and will allow you to work and use the NHS for free immediately, instead of waiting until after you are married and have the next visa.

You could still have your wedding in the UK in Feb 2020, but it could be a blessing ceremony instead of a legal ceremony.

This lawyer also said that the monthly income needed to be 1550 or more, and not a cent less. She suggested that if we had 6 payslips, each one 1550 or more, that would be enough. So we (myself, my fiance, and the solicitor) decided that my fiance would find some contractual work that would pay at least 1550 per month, and then when she had 6 consecutive payslips with at least that amount on them, we would go back to that solicitor and the solicitor would build our application (of course we'd be collecting supporting docs leading up to that meeting).

Not quite true. If she has a fixed annual salary, then each payslip must be at least £1,550 per month (they take the lowest payslip and multiply it by 12). However, if she is paid hourly, and has a variable income, you only have to show that she has earned an AVERAGE of £18,600 per year over the 6- month period (they add up all the payslips, divide by 6 and multiply by 12)

Indeed on March 4 my fiance got a job paying slightly over the 18,600 annual amount. She is paid per hour worked, and has been paid:
1518 in March
1560 in months April - June
and will be paid at least as much in the following months

As long as all her payslips added together, divided by 6 and multiplied by 12 equal £18,600 or more, it doesn't matter if some of them go below £1550, as long as it's made clear on your application and employer letter that she is NON-SALARIED.

By the way, you do not need to use a solicitor - looks like you have been given some incorrect advice by them already!

As long as you don't have any criminal convictions or previous bad UK immigration history, save your money, and we can help you make sure you qualify for the visa without having to pay a solicitor,

Personally, it doesn't sound like you have anything to worry about.

You just need to apply under Category A, and make sure that the average annual income from her 6 months of payslips is at least £18,600.

Ksand24,

That should have been "moved" not moved, as I am aware of the distinction! Sorry. I have of course only been visiting, it's just been nice having regular life together that feels less like a visit.

[/quote]The sponsor can use Category B if:
- they are earning at least £18,600 with their current employer, BUT they have been with that employer for LESS THAN 6 months, OR their income is variable each month, but overall they average £18,600 per year.[/quote]

Just want to clarify--isn't all non-salaried income ultimately variable? That is why under Category A, the average of 6 months is multiplied to find the projected annual pay, right? Just wondering why variable income is covered by the method of Category A, but you have mentioned it also as a criterion for using Cat. B. Just want to educate myself 

EDIT: I think I understand now -- one should use Category B if in the 6 months leading up to the application, the monthly average would not meet the requirement, but if the period of 12 months prior is considered, then it can be shown that >=18,600 was earned in that period.
I read somewhere that under Category B, if you use it because you've been employed less than 6 months, the HO will project out to 12 months based on your current pay rate (with the employer you've been with for <6 months), AND they check the 12 months prior to the application to see that 18,600 was earned. Not that I REALLY need to know how Category B works, I'm just interested. All I ultimately need to be certain of, is that we meet the Category A requirements and can move forward (so we don't have to wait until she's been with the same employer for a year! That would be nuts!)

The advice you have given (which is a blessing for my weary heart) has been pretty much exactly what I deduced. Specifically, that whether she was unemployed before her current job does not matter; that we should apply under Category A (because the sponsor will have been with the same employer for 6+ months at the time of application); and that these solicitors are giving out gravely mistaken 'advice', because as long as the gross pay of the 6 months' payslips is greater than 18600 when projected to a year, then the financial requirement will be satisfied (well, given that all documentation is correctly formatted and verified, etc.)

Thank you!

EDIT 1: don't know how to do specific quotes, sorry about that formatting error. You understand what I have highlighted though!

EDIT 2: I meant to add, we considered marrying in the US, however, from what I understand, the US does indeed require a fiance visa (K-1), and I can't possibly meet the sponsorship requirement. Indeed, we could get married while she was on a visitor's visa (well, the 90-day stamp), that isn't strictly prohibited, but it is strongly disadvised, as if it is determined that we had intention to marry when she came over, and hadn't declared that and found an appropriate visa, then there would be some pretty grave ramifications. Otherwise we would definitely marry in September when she comes over to visit me, we can't wait to get hitched

If you are not intending to live together in the US, then you can marry on an ESTA. It's completely above board and many, many of our members have done it that way. 

Larrabee,

Wow, that is excellent news!

To make sure that it is above board, would my fiancee need to declare that she was going to be marrying a US citizen, in the States, during her visit?

And would she need to be visiting on anything other than, the 90-day passport stamp given while she has an active ESTA?

As I understand it, ESTA is good for 2 years, and hers is soon due to run out. So she would have to renew that. Also, as I understand, ESTA is not a visa, one just has better clearance. So she can have (technically) unlimited 90 day passport stamps on her 2 year-visa. (Of course, they aren't likely to grant too many of these 90-day stamps per ESTA, as that would start to look a lot like 'living' in the US and not visiting).

So she would renew her ESTA, arrive at US passport control, she'd declare that she was going to marry a US citizen during her visit, they give her the 90-day stamp (she's only there for 2 weeks actually), and we marry and then in Feb we just have a very 'detailed' weddding-themed party with our friends and family

ESTA is not a visa, correct. It is pre-approval to travel to the US. The entry is still subject to the immigration officer on the day.

She should tell the truth at the border. Just answer the questions asked without volunteering extra information.

I know this is pedantic, but if despite the fact that she (likely is asked about, and then truthfully replies) that she is visiting her fiance, they still do not ask her questions pertaining to marrying during her visit, and she consequently doesn't mention that aspect of the visit, would that not later be construed as her withholding intention of intent to marry during her visit? Thanks!

Ksand24,

That should have been "moved" not moved, as I am aware of the distinction! Sorry. I have of course only been visiting, it's just been nice having regular life together that feels less like a visit.

No worries - just wanted to make sure you didn't use the terms 'moved to the UK' or 'living in the UK' to UK immigration when referring to your visitor visa, as that could cause problems.

EDIT: I think I understand now -- one should use Category B if in the 6 months leading up to the application, the monthly average would not meet the requirement, but if the period of 12 months prior is considered, then it can be shown that >=18,600 was earned in that period.

Yes - because some people do contract or freelance work, where they might earn, say £3,000 one month and then £0 the next month, but as long as overall, they earn £18,600 or more annually, they can still meet the requirements.

I read somewhere that under Category B, if you use it because you've been employed less than 6 months, the HO will project out to 12 months based on your current pay rate (with the employer you've been with for <6 months), AND they check the 12 months prior to the application to see that 18,600 was earned. Not that I REALLY need to know how Category B works, I'm just interested. All I ultimately need to be certain of, is that we meet the Category A requirements and can move forward (so we don't have to wait until she's been with the same employer for a year! That would be nuts!)

Your interpretation of Category B is correct.

You need to show:
- current employment, earning £18,600 annually (either salaried or non-salaried)... but it doesn't matter how long you've held the job (could be 1 week, could be 5 months, could be 10 years)
AND
- total earnings of £18,600 or more before tax in the last 12 months (to make up for the fact that you haven't been earning £18,600 continuously for 6 months yet)

Basically, you can use Category B if your current income or employment does not meet Category A.

The advice you have given (which is a blessing for my weary heart) has been pretty much exactly what I deduced. Specifically, that whether she was unemployed before her current job does not matter; that we should apply under Category A (because the sponsor will have been with the same employer for 6+ months at the time of application); and that these solicitors are giving out gravely mistaken 'advice', because as long as the gross pay of the 6 months' payslips is greater than 18600 when projected to a year, then the financial requirement will be satisfied (well, given that all documentation is correctly formatted and verified, etc.)

I would be very careful taking advice from solicitors - I've lost count of the number of people who have found this forum after being given extremely bad or incorrect advice by lawyers who didn't know what they were talking about... advice which, had it been taken, would have resulted in a visa refusal (and in some cases, it actually did result in a refusal).

Sounds to me like you should have a pretty normal, straightforward application which will not require a lawyer's advice.

EDIT 2: I meant to add, we considered marrying in the US, however, from what I understand, the US does indeed require a fiance visa (K-1), and I can't possibly meet the sponsorship requirement. Indeed, we could get married while she was on a visitor's visa (well, the 90-day stamp), that isn't strictly prohibited, but it is strongly disadvised, as if it is determined that we had intention to marry when she came over, and hadn't declared that and found an appropriate visa, then there would be some pretty grave ramifications. Otherwise we would definitely marry in September when she comes over to visit me, we can't wait to get hitched

As larrabee said, it's perfectly legal to marry in the US on the ESTA, as long as she does not intend to live with you in the US after the wedding.

In fact, this is exactly what the US Embassy tells you to do (https://uk.usembassy.gov/visas/immigrant-visa-faqs/):

We are traveling to the United States to marry and will return to the United Kingdom after marriage. Do I still need a fiancé(e) visa?

If you will return to your permanent residence you may apply for a tourist B-2 visa, or if eligible, travel visa free under the Visa Waiver Program.  At the time you apply for the visa and/or travel to the United States you will be required to show that you have a residence outside the United States that you do not intend to abandon. There is no set form that this evidence takes as it varies with each person’s circumstances.

Besides, if you had to have a K-1 visa just to marry in the US, then no one would be able to have a destination wedding in the US (and Vegas might go out of business) .

I know this is pedantic, but if despite the fact that she (likely is asked about, and then truthfully replies) that she is visiting her fiance, they still do not ask her questions pertaining to marrying during her visit, and she consequently doesn't mention that aspect of the visit, would that not later be construed as her withholding intention of intent to marry during her visit? Thanks!

If they ask the purpose of her trip, she should say that she is visiting you and the two of you are getting married. 

I know this is pedantic, but if despite the fact that she (likely is asked about, and then truthfully replies) that she is visiting her fiance, they still do not ask her questions pertaining to marrying during her visit, and she consequently doesn't mention that aspect of the visit, would that not later be construed as her withholding intention of intent to marry during her visit? Thanks!

Nope.

The only thing that can get her into trouble is lying to US immigration about her intentions. So, she should not withhold any information if asked, but at the same time, she should only answer exactly what is asked of her, and she should not offer extra information she is not asked for.

If she is asked what she will be doing in the US, she should be honest and say she is getting married and then returning to the UK.

If she is not asked, then she should not mention it.

For example, I recently entered the US (I have a B-2 visa as I'm not eligible for ESTA anymore), and was asked:
Immigration Officer: How long are you staying for?
Me: 2 weeks
IO: What is the purpose of your visit?
Me: I'm just visiting
Him (Silence, then): How much money do you have with you?
Me: In cash? $400
Him (stamped my passport and handed it back to me and I walked away)

If he had asked for more details, I would have explained that I was visiting a friend in Los Angeles the next day, then going to Disneyland for a few days, before flying to Dallas for the weekend, after which I was flying to Arkansas to visit family for a few days.

But he didn't ask, so I didn't tell him. If he'd needed to know, he would have asked me.

Great, thank you for being explicit in explaining the US-scenario. Scary stuff this is, to the uninitiated!

Ok, so I think it is clear that we will then plan that we will marry in the US during her upcoming visit, as that would for multiple reasons be the best option.
Sounds like she just needs to prove she won't be abandoning her residence in the UK, (she lives with her mother), and I would think, strong evidence that we aren't intending to stay in the US after that marriage, would be for her to say, if they inquire further, that she and I are pursuing a visa for me to later move to the UK as her spouse. In any case, she won't give answers to unasked questions, and if they want to know what she is doing during her visit, she'll say she is visiting me and we are getting married (at which point maybe she'll have to do a little answering to show that we aren't intending to stay in the US afterwards).

And, it sounds like we are good-to-go to apply under Category A, once she has been with her employer for 6+ months, and that we don't need to worry about Category B, or unemployment in the months prior for that matter, as we can clearly show that from 6-months' worth of wage slips, she is earning above a rate greater/equal to 18,600 annual pay. 

And solicitors are very, very prone to giving poor advice (seriously, what is that about?)

I'm hoping there's nothing amiss in what I've just written. I sincerely thank those who have responded, I hope to repay in kind, when the opportunity is mine to do so.

Ok, so I think it is clear that we will then plan that we will marry in the US during her upcoming visit, as that would for multiple reasons be the best option.
Sounds like she just needs to prove she won't be abandoning her residence in the UK, (she lives with her mother), and I would think, strong evidence that we aren't intending to stay in the US after that marriage, would be for her to say, if they inquire further, that she and I are pursuing a visa for me to later move to the UK as her spouse.

Chances are she'll be let in with nothing more than a 'Congratulations' or a 'Good luck', since hundreds of people do it every day, but if she is asked for proof, she can just bring evidence of her job and she can also mention that you will be applying for a visa for the UK

And, it sounds like we are good-to-go to apply under Category A, once she has been with her employer for 6+ months, and that we don't need to worry about Category B, or unemployment in the months prior for that matter, as we can clearly show that from 6-months' worth of wage slips, she is earning above a rate greater/equal to 18,600 annual pay. 

Yep, you would only need to use Category B if for some reason you couldn't meet the Cat A requirements.

And solicitors are very, very prone to giving poor advice (seriously, what is that about?)

Honestly, I think it's because they are just not familiar with straightforward applications made outside the UK. Most UK immigration lawyers specialise in outside-the-rules cases lodged inside the UK, like appeals for refused visas, refugees, applications for asylum, people who are already in the UK but cannot qualify for a visa extension and are applying outside the rules, etc., so they just aren't that well-versed in how you apply from the US, and what documents are needed for out-of-country applications.

I would imagine that a regular UK immigration lawyer only deals with a handful of straightforward cases a year, and probably almost never deals with straightforward applications from the US.

On the other hand, here on the forum, we help people every day and we answer the same questions every day. We know the immigration rules pretty much off-by-heart and over the last 12 years, we've helped probably thousands of US citizens successfully apply for their fiance and spousal visas. We've also seen hundreds of people on this forum successfully marry in the US without a visa.

The only time we recommend using a lawyer is if you have a complicated situation, for example, you have criminal convictions that might prevent you from being allowed into the UK, you have a number of previous refused entries or visas to the UK, you have illegally worked or overstayed in the UK etc. And even then, there are only 2 law firms we recommend (one based in London and one with offices in both New York and London), because we know they specialise in fiance/spousal visa applications made in the US.

Thank you for the added info re:Solicitors.

I am cutting it close with a departure on the 8th of Aug. when my 6 months runs out on the 12th, but I think that'll be OK, and it sounds like if that went awry, there are at least 2 law firms that you'd recommend (not that I want to resort to that! haha)

This forum is almost too good to be true, without it, I would be up a very ..distressing.. creek.

Thanks again.

My husband and I married in the US, despite already living together in the UK (I was on a work visa). I wanted to marry in my hometown!

My husband carried a letter from his employer about when he was expected back at work, but they didn't ask to see it (bt he felt better knowing he had it to show them if they had asked for proof of leaving the USA. They asked why he was coming, and he said to get married. They made some crack about 'are you SURE you want to do that?' Asked where he would be living after we got married (the UK). Then they wished him luck and let him through. I had flown out a few days before, so he was on his own with his family and a couple of friends who were coming to the wedding.

We went to get our marriage license the next day and then married two days later (not because of any waiting period or anything, just because that was when the wedding was).

It was SIMPLE!!! Not like the ridiculous 'giving notice' and waitin periods in the UK... You could still defintely have a blessing in the UK, but wouldn't need to follow the ridic notice periods required for the official marriage stuff.

Ok, so I think it is clear that we will then plan that we will marry in the US during her upcoming visit, as that would for multiple reasons be the best option.

And, it sounds like we are good-to-go to apply under Category A, once she has been with her employer for 6+ months, and that we don't need to worry about Category B, or unemployment in the months prior for that matter, as we can clearly show that from 6-months' worth of wage slips, she is earning above a rate greater/equal to 18,600 annual pay. 

As you guys are basing her visit/your application on when she has 6+ months of employment to show, have her take a look at her payslips.  If they don't explicitly state the start and end dates of the pay period on them (eg., "1 Apr 2018 to 30 Apr 2018" or "1/4/2018 to 30/4/2018", or something along those lines), she will need 7 payslips to show six FULL months of pay.  Don't get caught out!

ETA:  I just assumed she would bring her supporting evidence with her on the visit, so you can apply straight away after marrying.  If you're not doing this, don't let me cause a panic for you.  But do be aware of the potential need for 7 payslips.