Corporate

Our fields of expertise

 

 

 

Highly Skilled Migrant Programme

The Dutch Highly Skilled Migrant Programme (Kennismigrantenregeling) offers an attractive option for companies that require to hire personnel from non-EU countries. Qualifying companies can apply for a combined work- and residence permit for their employees and these permits should typically be granted within a two weeks’ time-frame.

Recognised sponsorship

To be able to file a Highly Skilled Migrant (HSM) permit on behalf of an employee, a company must first obtain recognized sponsor status. The one-off fee for enrollment is € 5,276 in 2017. For small companies (less than 50 employees) and start-ups, a reduced fee of € 2,628 applies. For companies that currently have the recognized sponsorship status but need to apply again because of a change in their legal form, the reduced fee of € 2,628 also applies.

Applying for a Highly Skilled Migrant permit

An employer can file an application on behalf of the Highly Skilled Migrant. The assessment by the Dutch immigration services (IND) is primarily salary based. In 2017, the following monthly salary thresholds apply:

  • Migrants aged 30 years and up: € 4,324
  • Migrants younger than 30 years: € 3,170
  • Migrants who recently graduated in the Netherlands € 2,272
    or who hold a search year permit

These amounts are exclusive of 8% holiday allowance and are indexed on an annual basis (every 1st of January).

Please note that the stated salary amounts must be in conformity with market standards and CBA’s (collective bargaining agreements) as well.

Highly Skilled Migrant permit versus Intra-Corporate Transfer permit

It is not possible to apply for a Highly Skilled Migrant permit when the application falls within the scope of the Intra-Corporate Transfer Directive (ICT Directive): there is no element of choice here. The applicant whose situation falls within the scope of the ICT Directive will either receive an ICT permit if all conditions are met, or the application will be rejected all together.

Both types of permits have their advantages and disadvantages. The ICT permit makes it easier to transfer an employee within the EU, but it cannot be extended after three years. The HSM permit does not provide its holder with EU mobility rights, but it can be extended after three years and its holder can build up rights in the Netherlands.

Postings of employees who are placed on a local Dutch employment contract do not fall under the scope of the ICT Directive and therefore may still qualify for a Highly Skilled Migrant permit.

The future of the HSM programme

The European Commission has proposed a new EU Blue Card Scheme. The EU Blue Card Scheme currently exists in parallel to the HSM programme, but as the Blue Card is considered less attractive than the HSM permit, the Blue Card is currently hardly used in the Netherlands. The Commission has announced its intention to change the existing EU Blue Card Scheme and replace it with an EU-wide scheme for highly skilled third-country nationals. If the proposal is accepted in its current form, the Dutch HSM scheme will be abolished. It is, however, possible that the proposal will not be accepted in its entirety, in which case the two schemes may continue to co-exist. Valegis will closely monitor the developments with respect to the EU Blue Card and the Dutch HSM programme.

Our advice to you

If you have plans to hire several migrants from abroad, the HSM scheme may be just the right option for you. If you only wish to hire one or two migrants in the coming years, other options may be more attractive to you considering the enrollment fee of the HSM scheme.

 

 

 

Intra-Corporate Transfers (ICT)

Per 29 November 2016, companies based outside the EU can apply for an Intra-Corporate Transfer permit (ICT permit) for employees who are temporarily posted to a group entity within the EU. The Dutch regulations are based on Directive 2014/66/EU (the ICT-Directive) and apply to transfers of managers, specialists or trainees.

What does the Intra-Corporate Transfer system look like?

The Intra-Corporate Transfer regulations provide companies with more flexibility with respect to intra-EU mobility. Other features of the system include:

  • The ICT-regulations apply to intra-corporate transfers of employees who remain employed by the non-EU entity and have an employment history with said entity of at least three months before starting the assignment in the Netherlands;
  • The ICT-permit has a maximum validity of three years and cannot be extended after this period;
  • The employee and its family members are exempted from the civic integration exam and family members have work authorization;
  • The salary of the employee should be in conformity with the market. There are no fixed salary standards, but the existing salary thresholds for Highly Skilled Migrants will be used as indicator;
  • A cooling-off period of six months applies to transferees who require a consecutive posting to the Netherlands as an Intra-Company Transferee;
  • The ICT-permit has a temporary nature, which means that accrued years of residency on the basis of an ICT-permit do not qualify as years for a permanent EU residence permit.

Highly Skilled Migrant permit versus ICT permit

It is not possible to apply for a Highly Skilled Migrant permit (HSM permit) when the application falls within the scope of the ICT Directive: there is no element of choice here. The applicant whose situation falls within the scope of the ICT Directive will either receive an ICT permit if all conditions are met, or the application will be rejected all together.

Both types of permits have their advantages and disadvantages. The ICT permit makes it easier to transfer an employee within the EU, but it cannot be extended after three years. The HSM permit does not provide its holder with EU mobility rights, but it can be extended after three years and its holder can build up rights in the Netherlands.

Postings of employees who are placed on a local Dutch employment contract do not fall under the scope of the ICT Directive and therefore may still qualify for a Highly Skilled Migrant permit.

Transitional arrangement

Applications for Highly Skilled Migrant permits filed before 29 November 2016 will be handled as per the most favourable rules (HSM or ICT). Where appropriate the Dutch Immigration Services will contact applicants in order to liaise about what is most favourable in the specific situation. We advise you to pro-actively contact the Dutch Immigration Authorities to state your preference.

 

 

 

Business trips, trainings and other short term visits

Business travelers come and go but are there any compliance risks? When do you need a work permit?

The most widespread misconception is that business visits are not considered to be ‘work’. The basic rule is that non-EU nationals who perform work in the Netherlands should be in possession of a work permit and ‘work’ is broadly defined here. There are some exceptions to this rule, most notably the business visa exceptions to conduct business meetings or enter into contracts. However, these exceptions are limited in both the duration and the nature of the ‘work’. The exemption allows business visitors to visit the Netherlands for a maximum period of 13 weeks per year and “business meetings” and “contract negotiations” are defined very narrowly.

There are other activities exempted from the work permit requirement,  such as: repairing or installing machines and equipment and attending a specific type of training or receiving instructions. These activities can be performed in a period of 12 weeks within a 36 weeks period, and only under strict conditions.

Work performed outside the scope of the aforementioned exceptions may have serious consequences, such as fines of up to 12.500 euro, publications of violations and consequences for the employee’s right to enter the Netherlands in the future. We therefore advise to act cautiously with business travelers. Organizations with large numbers of business travelers and compliance driven businesses may choose to use a protocol to standardize and regulate these type of activities. Last but not least, seek advice if you are not sure whether the activity falls under the exemption!

 

 

 

Work permits

To perform work in the Netherlands, non-EU nationals should in principle be in possession of a valid Dutch work permit. Performing work in the Netherlands unauthorized may lead to fines and/or other types of sanctions (Compliance).

Before starting an application for a work permit, we advise you to closely consider alternative permit options such as the Highly Skilled Migrant Scheme ( HSM) or the Intra-Corporate Transfers Scheme (ICT).  In general, these schemes have a quicker processing time and less documentation requirements.

If these schemes do not apply or are not favourable to the particular situation, a general work authorization may be required.

Labour market test

The Dutch labour authorities (UWV) will assess if priority should be given to other candidates who do not require a work permit to perform work in the Netherlands. It is up to the applying company to show that a real effort has been made to find these priority-enjoying employees. If such candidates are not considered available, the company can hire an employee from outside the EU.

Other requirements, such as Dutch employment law requirements (sufficient salary, sufficient working conditions) and housing requirements, should also be met. The employee should also have the right to reside in the Netherlands and applying for a separate residence permit may therefore be required in certain circumstances.

Duration of work permit

In principle, a work permit will be granted for a maximum period of one year. In certain cases the maximum validity is three years.

Asian restaurants

There are specific requirements for chefs in Asian restaurants (Chinese, Indian, Indonesian, Japanese, Korean, Malaysian, Thai, Tibetan and Vietnamese cuisine). A two-year work permit can be granted without the abovementioned labour market test, under certain conditions. One of these conditions is that the employee is at least a speciality chef (level 4). Another condition is that the company either trains or hires employees who do not need a work permit in the Netherlands.

The Dutch government has installed an application cap. A maximum number of permits will be available, with the following caps per period:

  • 1 October 2016 – 30 September 2017: 1.800 permits
  • 1 October 2017 – 30 September 2018: 1.400 permits
  • 1 October 2018 – 30 September 2019: 1.000 permits

Other exceptions

There are certain other categories that are exempted from the labour market test. For example, teachers of international schools, religious leaders and artists. All these categories have their own sets of conditions that need to be met before a work permit can be granted.

 

 

 

Self-employed / entrepreneur

There are two types of residence permits for self-employed persons: the start-up permit and the self-employed permit. The start-up permit requires partnering up with a facilitator. For companies that do not have a business plan yet and who are in the process of developing their idea into a business, the start-up permit may be a good option. For established companies who do not require the services of a facilitator, the self-employed permit may be a better fit.

Requirements

To be eligible for the self-employed permit, you need to meet certain requirements. You should have sufficient means to support yourself, your business should serve an essential Dutch interest and depending on your profession additional requirements may apply.

The essential Dutch interest is assessed with a points-based system. This points-based assessment does not apply to Turkish nationals or to holders of an EU permanent residence permit for long-term residents. Turkish nationals will need to show that their company serves an essential Dutch interest. For American and Japanese nationals more favourable assessments can take place on the basis of bilateral treaties.

If you are not an American, Japanese, Turkish or EU long-term resident, you will need to score sufficient points in the following categories: personal experience, business plan and added value for the Netherlands. You should score at least 30 points in each category, or at least 45 points in the first two categories. Work experience, a high education and previous experience with the Netherlands will score points in the first category, a good market analysis and solid finances will help to award points in the second category and in the third category you can score points with the creation of labour, with investments and high level of innovation.

Duration of residence permit

The residence permit will be valid for two years maximum and can be extended. The administrative charge for the self-employed permit is currently € 1,319.

 

 

 

Start-ups

Innovative entrepreneurs entering the market in the Netherlands may find their immigration solution in a start-up permit.

Citizens of the EU/EEA and Switzerland do not need a residence permit to work as a self-employed person and American and Japanese nationals may find a solution in treaty based permits. For all other nationalities the start-up permit may be worth considering.

Requirements

To be eligible for the start-up permit, the product or service that you intend to develop needs to be innovative. The Netherlands Enterprise Agency (RVO) will assess the innovative value of your product or service. If you work with specific corporate social responsibility, have a creative market approach or an original approach to environmental or sustainability issues, this may increase your chances of obtaining a start-up permit.

Another important requirement is that you should partner with a reliable facilitator. This facilitator will provide you with services such as (access to) coaching, technology, research, business premises and/or finances. Examples of facilitators are accelerators and incubators. The facilitator should have at least two years experience in guiding start-ups, should be financially sound and cannot be related to you as a family member. The facilitator may not have a majority share in your company.

You should have sufficient means to support yourself for the duration of your residence in the Netherlands. The current minimum is € 1,173.01 per month for single persons. Someone else, even your facilitator, can also fund your stay.

You will be required to submit a step-by-step plan, detailing which activities you will undertake in the first year, what your role in the start-up will be and which innovative product or service you will develop.

Other requirements are registering at the Chamber of Commerce and taking out health insurance.

Duration residence permit

The start-up residence permit is valid for one year. You cannot renew this permit and should therefore apply for another type of permit if you wish to stay in the Netherlands. With a statement from your facilitator, you can bypass the rigid assessment scheme of the standard self-employed permit and only need to meet several less rigid requirements.

The administrative charge for the start-up permit is currently € 317.

 

 

 

Dutch American Friendship Treaty (DAFT)

The Treaty of Friendship, Commerce and Navigation, also called ‘Dutch American Friendship Treaty’, between the United States of America and the Netherlands, allows American entrepreneurs to set up their own business and make use of favorable regulations to work and reside in the Netherlands.

The treaty sets a low threshold for American citizens to obtain legal residency in the Netherlands in order to work as a self-employed entrepreneur. The main requirements include having a company, most commonly in the form of a sole proprietorship, Dutch limited liability company (BV) or a partnership and a minimal capital investment of € 4,500 in a Dutch business bank. DAFT permits are renewable and typically issued for a duration of two years. A business plan is not a required document for this application.

Partners and children can obtain residence permits as well.

We assist American nationals with the complete process from start to permit. We recommend that you seek tax counsel before you set up a business and apply for residency in the Netherlands. We work in close collaboration with reliable tax partners as part of our full-fledged DAFT-assistance.

 

 

 

Japanese entrepreneurs

The Treaty of Commerce and Navigation between Japan and the Netherlands, allows Japanese entrepreneurs to set up their own business and make use of favorable regulations to work and reside in the Netherlands.

The treaty sets a low threshold for Japanese citizens to obtain legal residency in the Netherlands in order to work as a self-employed entrepreneur. The main requirements include having a company, most commonly in the form of a sole proprietorship, Dutch limited liability company (BV) or a partnership and a minimal capital investment of EUR 4.500 in a Dutch business bank. Self-employed permits are renewable and typically issued for a duration of two years. A business plan is not a required document for this application.

Partners and children can obtain residence permits as well.

We assist Japanese nationals with the complete process from start to permit. We recommend that you seek tax counsel before you set up a business and apply for residency in the Netherlands. We work in close collaboration with reliable tax partners as part of our full-fledged legal assistance.

 

 

 

Turkish nationals

Due to the Association Agreement between Turkey and the European Union, Turkish nationals enjoy certain rights and privileges.

If a Turkish national wishes to perform work as a self-employed person, the more rigorous point-based system does not apply. Instead, the entrepreneur must show that the company serves an essential Dutch interest. We advise Turkish nationals to provide the Immigration Services with a solid business plan, showing that the company is viable and does not interfere with the Dutch labor market. If you hand in a complete application, no MVV visa is required and you will be able to submit the application in the Netherlands.

If a Turkish national wishes to perform paid employment, no (recognized) sponsor is required. To obtain a Highly Skilled Migrant permit, the Turkish national therefore does not need to be employed by a company with recognized sponsorship status.

Due to a ‘standstill’ clause in the Association Agreement certain requirements do not apply, such as the requirement to pass the civic integration exam which is particularly interesting to those who want to apply for permanent residency. We assist Turkish nationals with their work- and residence permits and are happy to explore all options to provide you with the best possible solution to your immigration needs.

 

 

 

Compliance

Increasing attention to compliance with immigration regulations requires a pro-active approach from employers in order to reduce exposure.

The Dutch Ministry of Social Affairs and Employment closely monitors compliance with the Dutch Foreign Nationals Employment Act. In case of a violation, the company may receive a fine of up to 12.000 euro per foreign employee. In addition, administrative penalties and a separate enforcement  systematic of the Immigration Services (IND) exist.

All foreign employees who are not EU nationals should have a work permit to perform work in the Netherlands, save for some exceptions. For the business visa exceptions, please click here. Croatian nationals are EU citizens, but they do still need a work permit to perform work in the Netherlands.

The Foreign Nationals Employment Act uses a broad definition of the term employer. An employer- employee relationship is strictly not required to fulfill the definition. Even without the existence of an employment contract and without actual authority over the employee, you may be seen as the foreign national’s employer. The relevant distinction in this regard is if the foreign national actually performs work or a service to you or on your behalf.

Even if you work with subcontractors, you may be considered the employer of the employees of the subcontractor in terms of the Dutch Foreign Nationals Employment Act.

To mitigate exposure, we advise you to use protocols that stipulate how identification of new hires and any other personnel on your premises should take place. It is your responsibility as an employer to carefully check the passports and work permits of all employees to make sure that they are allowed to perform work for you. Moreover you should keep these documents in your administration for a period of five years after the employment has ended.

We also advise you to consider adding indemnification clauses with respect to identification duties from the Aliens Employment Act in commercial contracts with suppliers or subcontractors, service-providers and any other parties that bring personnel to your premises. Such clauses should state that these parties will comply with the Dutch Foreign Nationals Employment Act and that they will indemnify you for any damages in the event of a violation.

We are happy to assist you by providing tailor-made protocols and template agreements. In the unfortunate event that enforcement authorities ascertain violations nevertheless, our immigration experts can litigate on your behalf.

 

 

 

EU Blue Card

The EU Blue Card is a European scheme designed to make working in the EU more attractive and to foster the mobility of highly qualified workers within the EU.

On the one hand the EU Blue Card gives its holder the ability to apply for the EC permanent residence permit after five years of stay in the EU, even if the worker has stayed in more than one country these five years. Other international workers will only be able to apply for the EC permanent residence permit after five years of stay in the same EU country. This increases the mobility of the Blue Card holders.

On the other hand should EU Blue Card holders apply for a new Blue Card when they move to another EU country. The second EU country will make a whole new assessment based on their own national criteria. This means that Blue Card holders do not automatically have the right to work in another EU country.

In its current form the EU Blue Card is not the preferred option for employers in the Netherlands. One of the main reasons why the Blue Card is not frequently used in the Netherlands, is that the salary threshold is higher than the threshold for the Dutch Highly Skilled Migrant Scheme. To be eligible for a Blue Card in the Netherlands, the worker has to earn a gross salary of at least € 5,066 per month, regardless of his/her age.

A lengthier process duration is also a reason why the Blue Card is not that popular in the Netherlands and moreover, there are additional documentation requirements that do not exist under the Highly Skilled Migrant Scheme.

The future of the EU Blue Card

The European Commission has proposed a new EU Blue Card Scheme. In the proposal, the salary threshold is lowered and the mobility of Blue Card holders is increased. If the proposal is accepted in its current form, the Dutch Highly Skilled Migrant Scheme will be abolished, as the two schemes cannot exist in parallel. It is, however, possible that the proposal will not be accepted in its entirety, in which case the two schemes may continue to co-exist. Valegis will closely monitor the developments with respect to the EU Blue Card.

 

 

 

Setting up your business in the Netherlands

The Netherlands is an attractive country for foreign investments. The infrastructure in Holland is one of the best in the world, and the business costs are low. Located on continental Europe, most European countries can easily be reached by train or car, and its international ports and airports connect the Netherlands with the entire world. London is just one hour flight away. Although the official language in the Netherlands is Dutch, you will easily get by with English.

To set up a business in the Netherlands, an important question is how to structure your company. We can provide you with advice in close coordination with our tax partners and notary services in order to ensure all your needs are catered for.

Our corporate law specialists can assist you on a wide range of topics, such as mergers and acquisitions, commercial contracts, director’s liabilities, intellectual property rights, etc. Our team has extensive experience rendering services to (family owned) companies, SME’s and international group companies with various backgrounds.

For Dutch employment matters and global mobility matters we have a dedicated employment law team. For international businesses, it is important to note that Dutch law may (in part) be applicable, even if you have excluded Dutch law in your employment contracts.

Matters concerning your business premises or are in good hands with our property law practice group.

On this website, you will find more information on the immigration requirements of moving to the Netherlands: for example on obtaining recognized sponsor status for your new Dutch business entity, hiring skilled workers, secondments within a group company,  but also information on residence permits for entrepreneurs and information on how to obtain any other type of work permit for your personnel. We are happy to discuss these options with you in more detail.