2007-09-15

Make thee mightier yet

I do believe that I may have said in a previous post on my deepening relationship with the UK Home Office that their refusal of my visa application and my grounds for appeal are "too boring for any of the readers here." But did I prove that? I can, you know. Below is the text of the appeal letter I sent to my friends in the HSMP office in Sheffield, which will arrive to them by express courier on Monday (and has already arrived to some of them by e-mail).
14 September 2007

Highly Skilled Migrant Programme
PO Box 3468
Sheffield S3 8WA
UK

Re: Request for review of application [right, I'm going to give you my case number]

To the members of the HSMP team:

I am in receipt of your letter of 28 August 2007 informing me of the decision on my application for an HSMP visa [secret magic number]. I believe that the HSMP team has reached an incorrect decision based on misinterpretation of the documents provided, and am therefore requesting reconsideration of the application for the reasons set out below.

The decision was based on an interpretation of the documentation I provided under the section “Previous earnings.” Allow me to address the contentions made in your letter of 28 August individually:

1. The letter claims that "the evidence does not corroborate the wage slips." It is difficult to follow the logic of this contention, since the wage slips are evidence, and their function is to corroborate, not to be corroborated. The wage slips do establish that the income claimed was earned, and the letter does not claim otherwise. It is unclear what is meant by corroboration in this context, since there exists no other evidence of what is contained in the wage slips aside from the wage slips themselves, which were provided to your office in accordance with the guidance notes for application. They clearly set out the amount of my salary for each fourteen-day period covered by each wage slip, the amount deducted for state and federal taxes, payments into federal and private pension schemes, medical insurance, and the amount deposited into my bank account.

2. The letter claims that I "have not provided an original tax return that corroborates individual earnings for the full period claimed." Here again it is not possible to discern from the letter what the HSMP team found to object to regarding my tax return. The only basis I can use for response is the half sentence offered in the letter. What follows is my detailed response based on what the HSMP team’s conclusion might have been, as derived through an exegesis of the half sentence in the letter:

a) Is the tax return original? Our tax return was filed electronically, which is done by an increasing number of people in the United States as it accelerates the process, simplifies the procedure of filling out the famously complicated forms, and reduces the potential for error. This practice is explicitly encouraged by the Internal Revenue Service as a matter of policy. Since the entire process takes place through electronic transactions, there is no "original" paper document. Rather, when the procedure is completed, the software produces a PDF file with the completed return, one copy of which is sent electronically to the Internal Revenue Service for processing, and one copy of which is downloaded to our computer. If we had filed our taxes using paper documents, we would still not have the original document as this would have been sent to the Internal Revenue Service, and we would have saved a copy for ourselves, as is the normal procedure. The copy which taxpayers save for their files is accepted as evidence of income and taxes paid by every existing relevant institution, including banks, mortgage brokers, and the Internal Revenue Service itself.

b) Is the document a tax return? The document that was provided is what is called a “tax return” as defined by the US Internal Revenue Code, and is referred to as such by taxpayers, accountants, banks, other financial institutions, and the Internal Revenue Service itself. There exists no other type of document which is referred to universally as a “tax return.” Under the definition in the Guidance Notes for the HSMP application, the document provided is also a tax return. The obvious and unavoidable conclusion is that the document is a tax return.

c) Is the tax return individual? There are three options available to taxpayers filing returns in the United States: they may file an “individual” return, file as “married filing jointly,” or they may file as “married filing separately.” The option of filing an “individual” return is not available to taxpayers who are married. My wife and I filed a joint tax return. This is what is done by the overwhelming majority of married couples, particularly if they want to take advantage of joint tax deductions for charitable contributions or child allowances, or if they own property in common. As the status of “married filing separately” involves twice the paperwork, it is generally used by people in less common circumstances, such as married partners who have widely differing individual property holdings or individually owned income-producing assets. Our tax return was prepared in accordance with the US Internal Revenue Code as the most complete and succinct statement of our family income. It may be the case that we could have filed separately when reporting our 2006 income, but 1) at the time, I did not know that I would be accepting employment in the UK, and 2) even if I had, I would not have known about the Byzantine interpretive strategies employed by the UK Home Office. I do not believe that the UK Home Office has the authority to penalise US taxpayers for complying with US tax law.

In any case, I corroborated my individual earnings with two pieces of additional evidence: 1) my wage slips covering an entire twelve-month period in 2006 and 2007, and 2) the 2006-2007 and 2007-2008 "salary letters" which are sent to each member of the faculty by the president of Clark University (my employer since 1997) giving details of salary for the coming academic year.

d) Does the documentation cover the full period? I provided documentation of earnings over an academic year, which is how salaries are calculated by my employer. Income tax returns cover earnings over a calendar year. The guidance notes for the HSMP application do not specify that the periods covered by two types of documentation need to correspond exactly with one another. They request income documentation for 12 of the preceding 15 months, and they request the most recent available tax return. Since tax returns are filed in April of each year to declare income for the preceding calendar year, there is no possibility of providing that type of documentation for income earned during 2007. Since most of the period between January 2006 and December 2006 does not fall within the 15 months preceding the HSMP application, that evidence is not suitable for submission. Here the HSMP staff appears to have invented a rule which is not stated in the application instructions, and would contain fatal internal contradictions if it were. The contention in your letter of 28 August is arbitrary, and it contradicts the published guidance.

3. The letter claims that two of the supporting documents provided state "your expected salary and they do not state your actual salary for the period claimed." The two documents in question are letters from the President of Clark University, Dr John Bassett, informing me of my salary for the 2006-2007 and the 2007-2008 academic years. These letters are sent each year to each permanent member of the faculty at Clark University, as they are at nearly every other university in the United States. According to US employment law and the rules of the American Association of University Professors (AAUP), these letters are legally binding documents with contractual status. As the president of the University, Dr Bassett is the highest ranking administrative officer of the institution, and under the university statute does not have the authority to discuss vague expectations in this type of communication (although he may do so in other contexts, such as addresses before a public audience).

For the reasons stated above, it is apparent to me that the HSMP team has misinterpreted the documentation which was submitted to them, has rejected documentation without valid reason, and consequently reached an incorrect conclusion in considering my case. I am therefore appealing the decision and requesting that the case be reconsidered.

Please permit me to remind you that my application was submitted with a request for urgent treatment, and that I request that my appeal also be treated urgently.


Thank you for considering my appeal.

Sincerely,

Dr Eric Gordy
Only hope (also, glory) stands between me and a positive decision. We shall see.

7 comments:

Paul Stubbs said...

Hi Eric
Hopefully the Home Office nerds will not understand the beautiful irony and sarcasm (hopefully, neither will Dr Bassett) contained within ... keeping fingers crossed for you!

Frank Sellin said...

Niiiice. Well-played, my dear chap! Gave me some good chuckles...

I hope your pain ends ASAP!

Anonymous said...

Eric, just wanted to check if the HSMP authorities approved your application or not?

Eric Gordy said...

Hi -- yes, this whole nightmare lasted most of August and September. The real challenge was getting the rejection letter, which took intervention by the head of the immigration office. I finally got it on a Thursday afternoon, wrote the letter in the evening and sent it by express mail on Friday with an electronic copy to the head of immigration. On Monday morning I got a message from a person at the Home Office informing me that he was personally taking charge of the review. I wrote back with a complete explanation of what committees have to agree to set salaries at my former job. By Monday afternoon I had the visa. So I arrived at my new job, a month late, very happy, and with stories to tell.

Anonymous said...

congrats eric. glad to hear.

i read your post and got worried because i'm in a similar situation. i've applied but for "tax returns" i submitted the regular form 1040 that we fill out in the US. i guess i better start searching for my w-2's then!

also do you know how long it took between the time you submitted your application and the first letter that you got from them?

Thanks!

Anonymous said...

also from where did you find out the contact email of the head of hsmp?

Thanks!

Eric Gordy said...

I found her name in a news article, then did a search on her name and found the address. This was not difficult, but what really surprised me was that I received a reply, and things started happening. As difficult as the experience with the UK Home Office was, I do not believe that I would have received a personal reply from any official at this level in the US.

About the response time: they were supposed to have acknowledged receipt of the application immediately, but did not, which is where the whole drama starts. I tried to contact them various ways, and eventually found out by phone that the application was rejected, but was told to wait to receive the letter to find out the reason -- this was important, of course, because depending on the reason I would know whether I had the right to appeal. But they could not tell me when I would receive the letter, and the period in which appeals are permitted is (if I remember correctly) 28 days. So my request for intervention from the director was just to receive the letter at all.

If they reject the tax return they have to say so in the letter, of course. In that case, I think it is adequate to respond that this document is accepted as evidence of income and taxes paid in the US. The HSMP guidelines do give a definition of the term "tax return." I also provided salary letters from my employers as additional evidence of income, which they rejected until I explained that a salary letter is considered a legally binding document.

At one point a friend of mine suggested to me that maybe all initial applications are rejected and all appeals are accepted. I do not know whether this is the case, but I can certainly say that it is worth the effort to appeal. Once the ball got rolling, they did respond.

And after that whole nightmare, the entry clearance application was done in three days. So this is the worst part of it.