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IMPACT – MEDIUM
What is the change? The Netherlands has launched a new Orientation Year for Highly Educated Persons program that allows non-EU nationals to apply to live in the country and look for work within three years of college graduation.
What does the change mean? The program is available to graduates of Dutch universities, higher professional education (HBO) programs or top universities abroad. It provides more time (three years instead of one) for non-EU nationals to apply once they complete their studies. It is also available to anyone who has held a Dutch residence permit as a scientific researcher within the past three years.
Background: The new program replaces the old Orientation Year for Highly Educated Persons and the Orientation Year for Graduates with a single scheme, and allows individuals to work in the Netherlands without restriction. The permits expire after a year and are not extendable. They can be applied for each time a non-EU national completes a bachelor’s program (in the Netherlands) or a master’s or Ph.D. program (in the Netherlands or at one of the top 200 universities abroad). The list of top universities abroad is compiled from the Times Higher Education World University Rankings, QS World University Rankings and Academic Ranking of World Universities. The program is also available to non-EU nationals who have held residence permits as scientific researchers within the past three years.
BAL Analysis: The new program provides those who have graduated in the Netherlands the chance to return to their home country after completing their studies before returning to the Netherlands to look for and obtain work. The changes may benefit Dutch employers in retaining and recruiting highly educated individuals.
This alert has been provided by the BAL Global Practice group and our network provider located in The Netherlands. For additional information, please contact your BAL attorney.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The Netherlands has set the 2016 salary thresholds index for highly skilled migrants.
What does the change mean? The gross salary thresholds will rise by 1.6 percent over this year’s thresholds.
Background: For 2016, the estimated gross monthly thresholds, exclusive of a mandatory 8 percent holiday allowance, are as follows:
€4,257 for highly skilled migrants ages 30 and over.
€3,121 for highly skilled migrants under 30.
€2,237 for students graduating from higher education institutions in the Netherlands.
€4,987 for EU Blue Card holders.
BAL Analysis: Employers are reminded that an 8 percent holiday allowance should be added to the salary minimums. The government will publish exact amounts in December. BAL will follow up if the amounts change significantly.
This alert has been provided by the BAL Global Practice group and our network provider located in the Netherlands. For additional information, please contact your BAL attorney.
What is the change? The Netherlands has expanded the categories of foreign workers who are exempt from having to obtain an MVV (Long Stay D-Visa) before entering the country.
What does the change mean? The process will be simplified for visa nationals who are now exempt from the MVV requirement, including foreign nationals holding a valid residence permit in a Schengen country who are sponsored by a Dutch employer with recognized sponsor status. Also exempt are foreign nationals providing services to an EU company under Vander Elst rules and individuals applying for the new start-up visa in the Netherlands.
Background: MVVs (Long Stay D-Visa) are required for third-country visa-required nationals staying longer than 90 days. The Dutch government has now waived the requirement to obtain an MVV for individuals who hold a residence permit issued by another Schengen member state and who apply for a residence permit for the Netherlands, provided the following requirements are met:
The exemption may include applicants under the Highly Skilled Migrant Program and EU Blue Card, but is not limited to these categories. Further, the government has also waived the MVV for individuals applying under Vander Elst or the Start-Up Visa Scheme, provided they satisfy the conditions for these categories.
BAL Analysis: This is a welcome change that will reduce consular processing for more foreign workers. Foreign nationals must have a valid passport and a valid residence card for another Schengen country or a Schengen visa. Applicants under the Highly Skilled Migrant Program and EU Blue Card program may enter with their Schengen residence permit and process their work permit in-country instead of at a consulate.
What is the change? The Netherlands has increased the amount of time that non-EU nationals can remain in the country without a work permit in order to attend business meetings.
What does the change mean? Non-EU nationals can attend business meetings in the Netherlands for up to 13 weeks in a 52-week period. The previous rule allowed for up to four weeks in a 13-week period for work permit-waived business meeting visits.
Background: In January of 2014, the Netherlands moved to expand the time non-EU nationals would be allowed in the country to attend business meetings before having to obtain a work permit. The 2014 bill was meant to broaden the waiver for business meetings and bring the Netherlands into accord with international agreements. A hitch in the bill’s language led to confusion, however, as the legislation stipulated that the allowable time frame would be set at 13 “uninterrupted” weeks in a 52-week period. The new regulation is meant to correct what was widely believed to be a drafting error. Under the new regulation, non-EU nationals can attend business meetings in the Netherlands without a work permit for 13 weeks in a 52-week period whether or not that time is uninterrupted.
BAL Analysis: While the time frame has changed, allowable activities for those in the Netherlands without a work permit have not. Those with any questions about what activities are permitted when attending a business meeting should contact their BAL attorney.
What is the change? The Netherlands has expanded its list of foreign nationals who are exempt from tuberculosis testing upon obtaining a residence permit.
What does the change mean? Nationals of 95 countries are exempt from TB testing. Also exempt are those who already have a valid residence permit in the Netherlands at the time of their application, were born in the Netherlands and have not changed their principal residence since birth, or have already undergone a TB test in the Netherlands.
Background: In general, all non-EU/EEA/Swiss foreign nationals must undergo a TB test within three months after receiving a residence permit unless they are exempt. The expanded list of foreign nationals of 95 countries now exempt from TB testing can be viewed here on the Dutch Immigration and Naturalisation Service website. Nationals who are not on the list may still be exempt from TB testing if they already had a TB test in the Netherlands, hold a valid residence permit at the time of their application, or were born in the Netherlands and kept the same principal residence since birth.
BAL Analysis: The change eliminates a step in the residence permit process for many foreign nationals.
IMPACT – HIGH
What is the change? Japanese nationals do not need to secure work authorization to work in the Netherlands, the highest Dutch immigration court has ruled.
What does the change mean? Japanese nationals have free access to the labor market, and Dutch employers may hire them without having to go through procedures to obtain work permits.
Background: The court based its ruling on the 1913 Treaty of Commerce and Navigation between the Netherlands and Japan. The treaty gives Japanese nationals the same status as foreign nationals of the “most-favored nation.” The court compared this treaty to a similar treaty between Switzerland and the Netherlands, which allows Swiss nationals to work in the Netherlands without work permits. The court found that the “most-favored nation” clause puts Japanese nationals on the same footing as Swiss nationals, who have been exempt from work permits in the Netherlands since November 2001.
BAL Analysis: While official regulations must be adopted to implement the ruling, the court’s ruling paves the way for employers to bypass work permit procedures in hiring and transferring Japanese nationals.
IMPACT – LOW
What is the change? The Netherlands’ monthly salary requirements for highly-skilled migrant workers will increase by 3.48 percent Jan. 1.
What does the change mean? Companies will have to pay slightly higher salaries to highly-skilled workers applying for work and residence permits, including those applying for EU Blue Cards or completing the Knowledge Migrant application.
Background: The Dutch government sets minimum salaries for highly skilled migrant workers every year. This year, the minimum salaries will increase by 3.48 percent across all categories of highly skilled foreign workers.
The minimum gross pay for highly skilled migrant workers who are 30 years of age or older will increase to €4524 per month. Gross pay for highly skilled migrant workers under 30 will increase to €3317 per month. Graduates who land jobs as highly skilled employees within a year of graduation will be due minimum gross pay of €2377 per month.
The minimum pay for holders of EU Blue cards will be set at €5300 per month. And the minimum pay for intra-corporate transferees will be set at €4524 per month, or €3317 per month for intra-corporate transferees in the trainee category.
The figures above include an 8 percent holiday allowance.
Salaries must be paid in equal installments, on at least a monthly basis.
BAL Analysis: Companies should prepare for the salary increases. The penalties for noncompliance are stiff: the Inspectorate SZW, a division of the Ministry of Social Affairs and Employment (“Ministerie van Sociale Zaken en Werkgelegenheid”), has the power to levy fines of €12000 per violation.
What is the change? The European Court of Justice has ruled that the Netherlands cannot require work permits for non-EU workers who are lawfully employed by a German company contracting to provide services to a Dutch company in the Netherlands.
What does the change mean? The court’s ruling puts an end to the Netherlands’ practice of requiring work permits for non-EU workers who provide services in the Netherlands on temporary assignments, so long as the employees in question have work authorization for the employment in another EU country. Whether and how quickly other EU countries implement the ruling is difficult to gauge at this point.
Background: The case is Essent Energie Productie BV. v. Minister van Sociale Zaken en Werkgelegenheid. Essent is a Dutch company that hired another Dutch company, BIS Industrial Services Nederland BV (BIS), to erect scaffolding at a branch office in the Netherlands. BIS, in turn, turned to a German company, Ekinci, to help with the project. Ekinci posted 33 nationals from non-EU states, including 29 Turkish nationals, in the Netherlands. Following an inspection, Essent was fined €264,000 for infringing Dutch law requiring foreign employees to have work permits.
The court held that the Dutch law unjustifiably restricted freedom to provide services within the EU. The court reasoned that less-restrictive means were available, such as providing information about the duration of the assignment and proof of work authorization, employment, and social security coverage in Germany. Following the decision, the Dutch Minister of Social Affairs acknowledged that work permits cannot be required when foreign employees with work authorization in other EU countries are posted in the Netherlands. The country now requires only administrative notification.
BAL Analysis: The Essent ruling is an important victory for advocates of greater freedom to provide services within the EU. It marks an extension of the principle first recognized in Vander Elst v. Office des Migrations Internationales in 1994. The Essent ruling applies EU-wide, but it remains to be seen whether all EU countries will comply – and if so, how long it will take for them to move into compliance.
As it is, EU countries vary on their requirements for foreign workers posted under Vander Elst. Because it is not yet known how Essent will be implemented, companies accepting posting of foreign employees should consider the individual circumstances of each case and relevant domestic laws.
What is the change? The Saudi government has imposed sanctions on Dutch companies and visa applicants in response to a Dutch politician’s printing of anti-Islam stickers.
What does the change mean? A Saudi royal decree has ordered Saudi companies to cease doing business with Dutch companies and directed the Saudi Embassy to limit the number of visas issued to Dutch nationals only to those deemed essential to Saudi Arabia.
Background: Last December, Dutch politician Geert Wilders printed stickers containing anti-Islam slogans on the image of a Saudi flag. Wilders founded and leads the Party for Freedom, a far-right, anti-immigration party.
In response, the Saudi government issued a royal decree, made public last month by the Mecca Chamber of Commerce, that orders Saudi firms to stop working with Dutch companies on future projects in Saudi Arabia. The decree also stated that visas will only be issued to Dutch companies and investors involved in projects vital to the kingdom. It also calls for trade delegations between the two countries to stop.
BAL Analysis: This will have a direct impact on Dutch companies registered in Saudi Arabia. Dutch firms will no longer be encouraged to apply for business or investor licenses and will no longer be awarded with Saudi government projects. The Saudi Embassy and Consulates in the Netherlands will take longer to make decisions on granting any visas and might reject the majority of visa application with no further justification.
This alert has been provided by the BAL Global Practice group and our network provider located in Saudi Arabia. For additional information, please contact your BAL attorney.
What is the change? The Netherlands has abolished registration for European Union nationals.
What does the change mean? EU nationals will no longer need to apply at the Immigration and Naturalisation Service (IND) for a registration sticker in their passports.
Background: As of Jan. 6, EU, EEA and Swiss nationals working and residing in the Netherlands do not need to report to the IND for registration as residents.
In the past, registration was required as proof of long-term resident status. The requirement is being terminated in part because the registration sticker that was placed in the passport could lead authorities to believe that an individual had legal residence even if his or her status in fact had changed. In addition, based on EU law, a person could argue that he or she was in fact a long-term resident even without having registered with the IND.
As many companies require evidence from their non-Dutch employees to prove long-term residence authorization in the Netherlands, the IND has prepared a letter that EU, EEA and Swiss nationals can show their employer when offering their passport or ID card as evidence of employment eligibility.
The new rule applies to nationals of Romania, Bulgaria and Croatia which recently joined the EU. Effective Jan. 1, 2014, Romanian and Bulgarian nationals also no longer require work authorization. Croatian nationals, however, still require work authorization to work in the Netherlands.
BAL Analysis: The new rule eliminates the administrative burden of registration. Going forward, EU, EEA and Swiss nationals may demonstrate legal residency with their valid passport or ID card. Alternatively, EU, EEA and Swiss nationals who must prove legal residency for employment purposes can obtain a letter from the IND.
This alert has been provided by the BAL Global Practice group and our network provider located in the Netherlands. For additional information, please contact GlobalVisaGroup@bal.com.