Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
What sponsored visas or work permits are available to employers seeking to hire foreign nationals in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
The most common categories are the Highly Skilled Migrant Programme and European Blue Card Programme. The Highly Skilled Migrant Programme allows employers with recognised sponsor status to sponsor migrant workers whose salary meets a threshold, provided that their salary is also in line with Dutch market level. For scientific researchers, guest lecturers or physicians training to be specialists, different salary thresholds apply.
The European Blue Card allows employers with or without recognised sponsor status to sponsor migrant workers who have completed a post-secondary education programme of at least three years and been awarded a diploma, and whose salary meets a higher threshold without a market level test. The employer must not have received any penalties relating to immigration in the five years preceding the application. A check will take place to verify that the employee’s diploma is the equivalent to a Dutch higher education degree of at least three years.
The application is processed within 90 days, or two weeks if the employer has recognised sponsor status.
What sponsored visas or work permits are available to multinational employers seeking to transfer foreign employees to your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?
Multinational employers seeking to transfer foreign employees to the Netherlands need to apply for a residence permit under the Intra-Company Transfer (ICT) Directive. To be granted an ICT permit, the following general conditions must be met:
- The foreign national is a manager, specialist or trainee;
- The foreign national is qualified at university or undergraduate level;
- Professions listed as ‘regulated professions’ in the Netherlands, such as pharmacists, architects or physicians, must have accredited foreign qualifications;
- The foreign national has been employed by the company for at least three months;
- The foreign national possesses a valid employment or trainee contract with an employer outside of the European Union or an assignment letter from an employer;
- The foreign national has his or her principal residence outside the Netherlands at the time of application;
- The foreign national has not resided in the Netherlands on the basis of the ICT Directive in the previous six months;
- The foreign national will return to a corporate group outside the European Union after the transfer period has expired;
- The salary meets statutory minimum wage and vacation pay requirements;
- The salary meets the industry benchmark considering position, age, expertise and experience;
- The host entity and sending entity belong to the same corporate group;
- The host entity is not established for the purpose of facilitating entry into the European Union;
- The transferee spends the longest time in the Netherlands;
- The host entity has not been previously sanctioned for undeclared work or illegal employment;
- The host entity conducts economic activities;
- Secondments of company employees in the Netherlands are allowed as core economic activities of the entity; and
- The application meets the general admission requirements of the Aliens Act.
The application is processed within 90 days, or two weeks if the employer has recognised sponsor status.
Do any special rules govern secondments?
Yes – the immigration rules are based on the ICT Directive, and the rules on employment conditions are based on the Posted Workers Directive (96/71/EC) and the Posted Workers Enforcement Directive.
Sponsor requirements and considerations
What are the eligibility and procedural requirements for employers to sponsor foreign employees?
To sponsor a worker in an employment-related category, the employer must normally be registered in the Dutch Trade Register (unless that is not required), and be allowed to employ the employee in the given industry (eg, under the Placement of Personnel by Intermediaries Act). To sponsor a worker under the Highly Skilled Migrant Programme, employers must have recognised sponsor status, can be applied for with the Immigration and Naturalisation Service. The key requirements to obtain recognised sponsor status are that:
- the continuity and solvency of the company be sufficiently guaranteed; and
- the company be registered with the Chamber of Commerce in the Netherlands.
The company and its directors and stakeholders should also have an undisputed trustworthy reputation.
Turkish nationals and their family members do not need a recognised sponsor when they want to work as highly skilled migrants. They may submit their application independently. However, an application filed by a recognised sponsor is generally processed faster.
What ongoing reporting and record-keeping requirements apply to sponsors?
According to the Immigration Act, sponsors must comply with a duty to report certain facts and circumstances within either four or two weeks, and keep records and retain certain documents and information. In addition, recognised sponsors must observe a duty of care towards the sponsored migrant worker. In situations regulated by the Posted Workers Enforcement Directive, the host employer must also provide certain information and keep records and retain certain documents.
In what circumstances (if any) must the employer submit to resident labour market testing before hiring or transferring foreign employees? Do any exemptions apply?
A resident and EU/EEA labour market test is required unless an exemption applies. Exemptions include certain categories of athlete and musician, religious workers, intra-company transferees, applicants under the Highly Skilled Migrant Programme and European Blue Card Programme.
Are there any annual quota limits or restrictions on certain positions that can be filled by foreign nationals?
Yes, on Asian cuisine chefs and certain working holiday programmes.
Are there any immigration exemptions or other special schemes for shortage occupations in your jurisdiction?
How long does it typically take to obtain a sponsored visa? Is expedited visa processing available?
A residence permit application takes up to 90 days. Recognised sponsors enjoy expedited processing and can obtain approvals within two weeks.
What rules govern the hiring of foreign third-party contractors?
This very much depends on how the assignment is structured and its duration.
What are the penalties for sponsor non-compliance with the relevant immigration laws and regulations?
Employing a migrant worker illegally € 8,000
Failure to provide copy of ID to enforcement agents within 48 hours € 8,000
Failure to notify work that must be notified € 1,500
Failure to provide secondary employer with copy of ID € 1,500
Failure by secondary employer to verify ID € 1,500
Failure by secondary employer to keep copy of ID on record € 1,500
Employers that are an individual or a foundation (stichting) or association (vereniging) and have had work carried out as non-profit outside a business scope will normally receive a penalty of 50% of the amounts stated above.
The civil penalty scheme allows the Labour Inspector:
- to lower the penalty by 25%, 50% or 75% if there are mitigating factors;
- to raise the penalty by100% in case of recidivism within five years or within 10 years if the violation is serious; and
- to raise the penalty by 200% in case of multiple recidivism within five years or within 10 years if the violation is serious;
Non-compliance with sponsor duties, set in the Immigration Act, may result in a warning or a penalty of €3,000 per violation. This amount is increased to €4,500 for subsequent offences committed within two years. This applies to ordinary and recognised sponsors, equally. Former sponsors of an illegal migrant worker can be held liable for certain removal costs if the migrant worker is removed within one year of the sponsorship ending.
For recognised sponsors, subsequent offences may lead to suspension or revocation of the recognised sponsorship status, or revocation or non-renewal of the highly skilled migrant’s residence permit.
The Labour Directorate can refuse work permit applications if the person or legal body applying for a work permit has been issued with a civil penalty in the five years preceding the application.
The Labour Directorate can advise the Immigration and Nationalisation Service to refuse employment-based residence permits (Combined Permit for Stay and Work) if the person or legal body that is the sponsor of the application has been issued with a civil penalty in the five years preceding the application.
In addition, the Labour Directorate can refuse work permit applications or advise the Immigration and Nationalisation Service to refuse employment-based residence permits (Combined Permit for Stay and Work) if the person or legal body that is the sponsor of the application:
- has been refused recognised sponsor status, or if its status has been suspended or revoked and this decision is legally final; or
- has been issued with a civil penalty by the Immigration and Nationalisation Service for violating sponsor duties.
Company officials who can be considered to have personally committed or otherwise been responsible for a violation risk a civil penalty of 50% of the penalty amount if the Labour Inspector can demonstrate that they:
- had knowledge of the violation;
- had influence over it/played a significant role in it; and/or
- neglected to take measures to prevent the violation or the continuation of the violation.
Persons and legal bodies risk criminal prosecution if a violation can (also) be considered an act penalised in the Dutch Penal Code – for instance, if a company official has submitted a fraudulent company statement, the official could in principle be prosecuted for fraud.
In addition, the Dutch Penal Code contains special articles about working with illegal migrant workers. A person or legal body that knowingly employs an illegal migrant worker can receive a jail sentence of up to 12 months or a criminal penalty in the fifth category. The jail sentence can be four years if the person or legal body makes a habit or a profession out of employing illegal migrant workers.
Are there any other special considerations for sponsors in your jurisdiction?
Companies that often work with non-EU employees can obtain a sponsor licence (recognised sponsorship) that gives them the right to a facilitated and expedited procedure for their employees’ work and residence permits, as well as their dependants’ permits.
General employee requirements
Must sponsored employees meet any language requirements?
No, this is not a requirement for their first admission to the Netherlands. They do need to pass the Civic Integration Test (which is mostly a language test) if they want to apply for permanent residence or Dutch citizenship.
Are sponsored employees subject to any medical checks?
There is no specific requirement to submit medical statements, but nationals of some countries are required to take the tuberculosis (TB) test within three months of entering the Netherlands.
Must sponsored employees meet any medical or other insurance requirements?
As mentioned above, some need to take the TB test, and sponsored employees need to obtain Dutch health insurance, unless they are exempted from this obligation.
Are sponsored employees subject to any security or background checks?
They do not need to submit police certificates, but will sign an antecedents statement in which they have to declare that they have never been convicted of a crime, accepted a fine or out-of-court settlement, or even been subjected to criminal prosecution for committing a crime. If they cannot sign the statement, they will have to explain what they did. Whether or not the employee is still allowed to come to the Netherlands very much depends on the gravity of the crime and when it was committed.
Are sponsored employees subject to any restrictions on studying or working second or volunteer jobs?
In principle, sponsored employees will be falling under the category of highly skilled migrants or ICTs, and as such they will receive a residence permit that does not restrict them from working (even as self-employed) or volunteering on the side.
Are there any rules or standards governing the equivalence of sponsored employees’ foreign qualifications?
In general, there is no requirement to show the equivalence of sponsored employees’ academic qualifications.
However, anyone applying for an EU Blue Card (less common in the Netherlands) is required to secure a diploma evaluation of the academic degree in order to show that the employee has followed a higher education programme that is the equivalent to a Dutch higher education of at least three years.
What are the penalties for employee non-compliance with the relevant immigration laws and regulations?
An employee would not receive a monetary penalty for non-compliance, but he or she would most likely either lose the residence permit or see his or her legal stay interrupted (making it harder to secure permanent residence or citizenship later). Also, providing false information can not only lead to the revocation of the employee’s current permit, but also become a ground for refusal of future residence permit applications in the Netherlands.
Click here to view the full article.