Simplification of regulation regarding skilled employees

You may recognise the following situation. A Dutch employer is unable to find the right employee for a job opening within his company. In that case it is possible to attract a foreign employee to the Netherlands to fulfil the available position and perform work. If this employee is a highly skilled employee, then the employee in question does not even need a work permit from the UWV.

Highly skilled migrant workers (hereinafter "skilled employee(s)") are highly educated individuals that will be earning a monthly gross salary of at least € 4,371.84 (or
€ 3,205.44 gross if the skilled employee is less than 30 years old). These standardised amounts apply as of January 1st, 2014 and relate to the contractually agreed upon gross base salary.

The skilled employee can be employed by the Dutch legal entity (company or organisation) on the basis of an employment agreement according to Dutch law. However, it is also possible to have an employee work for a Dutch entity on the basis of a transfer or secondment from a foreign company. Characteristic for the skilled employee is the wage requirement and that the skilled employee is registered with the Immigration and Naturalisation Service (Immigratie-en Naturalisatiedienst or IND). This registration leads to recognition of the employer as a referent (sponsor) for the IND and grants the employer access to an accelerated procedure. Without this recognition the employer cannot be a sponsor for the skilled employee.

As of June 1st, 2013 the regulations regarding skilled employees have been simplified as a result of the implementation of the law regarding modern migration policy (Wet Modern Migratiebeleid). By being acknowledged as a sponsor by the IND, employers need only follow one legal trajectory to facilitate the residence of the skilled employee in the Netherlands. This trajectory is called: the "Toegang- en Verblijfprocedure (TEV)" or access and residence proceeding if you will. Before the implementation of this law, two separate trajectories had to be followed for obtaining a temporary residence permit and an actual residence permit.

If, one year prior to the implementation of the law regarding modern migration policy, an employer was already a registered user of the regulation regarding skilled employees and it already had at least one residence request granted, then that employer was automatically recognised as a sponsor as of June 1st, 2013.

A sponsor plays in important role in the migration process of a skilled employee. The employer can submit a residence request on behalf of the employee and if refused can appeal the decision. The sponsor also has obligations however. The employee has legal obligations such as providing information, keeping an orderly administration, a duty of care and a responsibility of the return (at some point) of the employee to his or her home country.

The IND has also been awarded more powers to make it possible (together with the labour inspection or "Arbeidsinspectie") to take measures against sponsors and skilled employees that have not fulfilled their legal obligations.

If you have any questions regarding the regulation regarding skilled employees, please contact us.

Anouk Cordang
Member of the International Desk of Boels Zanders Advocaten

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