Can You Employ Someone While Their Visa Application Is Pending?
An employee's visa is about to expire, and they've applied to extend it — but the Home Office hasn't decided yet. Can you keep employing them? Can you hire someone whose application is still pending? The answer is usually yes, but only if you take the right step to protect yourself. Get it wrong and you're exposed to a civil penalty even though the person genuinely has the right to work.
This guide explains how to establish a statutory excuse when an immigration application is pending, and the deadline you can't afford to miss.
This guide is for informational purposes only and does not constitute legal advice. For advice on your specific situation, consult a qualified immigration solicitor.
The short answer
If an employee made a valid application to extend or vary their leave before their existing leave expired, their right to work usually continues automatically while the application is being decided. This protection comes from section 3C of the Immigration Act 1971, often called "3C leave."
But here's the catch: 3C leave protects the employee's right to work. It does not automatically give you, the employer, a statutory excuse against a civil penalty. For that, you need to verify the position through the Home Office — and you can't do that with a normal share code or document check, because the person's status is mid-application.
Why the normal checks don't work
When an application is pending, the employee typically can't generate a share code that confirms their ongoing right to work, and their documents (an expired visa, for example) no longer establish a current statutory excuse on their own. The standard routes — the online share code check and the manual document check — were built for people with settled status or a current, valid permission. A pending application falls outside both.
That's exactly the gap the Employer Checking Service fills.
What you must do: the Employer Checking Service
To get a statutory excuse for someone with a pending, in-time application, you request a check from the Home Office Employer Checking Service. You'll need the employee's details and their Unique Application Number (UAN) — a 12-digit reference from their application.
The service typically responds within up to 5 working days. If the answer is yes, you receive a Positive Verification Notice (PVN), which gives you a statutory excuse for 6 months from the date on the notice. Our Employer Checking Service guide walks through the full request process.
The two scenarios
Existing employee, visa expiring with an application pending. Before their current permission expires, run an Employer Checking Service check. If you receive a PVN, your statutory excuse continues for 6 months. If their permission has already lapsed and you didn't check in time, the 28-day grace period may give you a short window to obtain a PVN and preserve your excuse — but only if a statutory excuse already existed.
New hire with a pending application. You can employ someone whose application is pending, but you must establish your statutory excuse first — via the Employer Checking Service — before they start. Don't rely on "they told me they've applied." Verify it.
The deadline you can't miss
The PVN's 6-month limit is the part that catches employers out. If the underlying application is still pending when the 6 months are up, your statutory excuse has expired. You have to run another Employer Checking Service check and get a fresh PVN — and you have to do it before the 6-month anniversary, not after.
This is the same follow-up trap that catches employers with ordinary visa expiry dates. The difference is that a pending application can drag on for many months, so you may need to repeat the check two or three times before the application is finally decided. Each PVN buys you 6 months; each renewal needs a reminder. Our follow-up check timeline calculator sets the dates, and our visa expiry tracking guide shows how to capture them so none slip.
What happens if you don't
If you employ someone without a statutory excuse and they turn out not to have the right to work, you face a civil penalty of up to £45,000 per worker for a first breach. The fact that they had a genuine pending application doesn't help you if you never obtained a PVN — the penalty regime is built around whether you took the prescribed steps, not whether the employee was ultimately granted leave. See our civil penalty guide for how the figure is calculated.
The bottom line
You can usually employ someone with a pending, in-time application — their right to work continues under section 3C leave. But to protect yourself, request a check from the Employer Checking Service and rely on the Positive Verification Notice it issues. That notice lasts only 6 months, so diarise the renewal and re-check while the application is still outstanding. The employee's right to work is automatic; your statutory excuse is not.