I want to hire a foreigner (e.g. employee, trainee, intern, etc.). Is this possible?
If you want to hire a non-EU/EER national you can only do it in case you cannot find anyone suitable and available on the Dutch and EU/EER labour.
However, there are quite some possibilities to escape from this general rule.
If it is possible for you as an employer to obtain the legal residency with work authorisation in The Netherlands for your preferred foreign candidate will depend on several factors. Depending on the immigration option available in your particular case, these factors can be:
– the type of outstanding function;
– the salary you want to offer to the candidate;
– the educational background and work experience of the candidate;
– the amount of years your company is already up and running in the Netherlands;
– the legal structure of your economic group of companies worldwide (if applicable), etc.
Potential immigration solutions that may be available are:
– the Highly Skilled Migrant program;
– Intra-Corporate Transfer permits (for managers, specialists or trainees);
– Blue Cards, residence and work permits for interns or apprentices, residence permits for researchers, and work permits for cross border workers.
The EMG team is happy to help you with identifying which immigration solution is available in your specific case.
What is the Highly Skilled Migrant program?
The Netherlands introduced the Highly Skilled Migrant (hereinafter: HSM) program to enable the business community in the Netherlands to attract talent from outside the EU/EER in an easy and fast way with a low document burden. It is fair to say that this program is one of the most favourable, competitive and popular immigration schemes within the EU/EER area. This program has been developed because The Netherlands wants to be a competitive knowledge economy and needs skilled people from all over the world.
As said, HSM residence permits can be obtained easily. The conditions for the obtainment of this permit are very straightforward. The key requirement is only that the agreed monthly gross salary with the foreigner meets the (age-dependent) HSM salary threshold. And also that this salary is market conform in the context of the skilled position to be fulfilled.
Also, the HSM residence permits can be obtained fast. The Dutch Immigration and Naturalisation Service (hereinafter: IND) usually decides on applications within a few weeks only.
What is a registered sponsorship?
Before you can apply for HSM residence permits for non-EU/EER staff, the IND needs to accept your company as a “recognised sponsor”. To be approved, a separate application for acceptance will need to be submitted so the IND can check if your company is a trustworthy partner. For example, the continuity and solvency of your organisation must be sufficiently guaranteed, and your organisation must be reliable (e.g. your organisation is compliant with the Alien and Foreign Nationals Employment Act, and has not received tax negligence penalties).
An additional advantage is that your organisation can not only apply for residence permits under the fast-tracked HSM scheme. It can also expect faster processing times for applications under some other work-related immigration schemes. For example, for intra-corporate transfers, intern and traineeships, blue cards etc.
As a final note, you must realise that Registered Sponsorship does not only come with benefits. The recognition also brings several legal obligations that the company has to meet.
If you are interested in becoming a registered sponsor with the IND, please feel free to contact us.
I will receive a service from a company that is established in another EU/EER country, that is sending someone to my Dutch office location. What now?
Employers in other EU/EER member states can temporarily post their employees to the Netherlands to provide a service that this employer has contracted with you. Also, if these employees are not EU/EER passport holders, as long as these foreigners legally reside and work in that other EU/EER member state. It is the famous freedom of service provision within the EU/EER.
However, it is not generally required that the employer in other EU/EER state notifies this service with the Dutch Employee Insurance Agency (UWV) before the start of the employment. This notification is done through an official web portal. If they do not do this, they run the risk of a penalty.
Note that your company, as the recipient of the posted worker(s), is obliged to verify if this notification is done correctly and timely. If you do not fulfil this requirement, you run the risk of a penalty as well.
Briefly summarised, in this notification must – amongst others – be demonstrated:
– which company is providing the service
– that your company is receiving this service,
– the identity of the posted worker(s)
– that the posted worker(s) has/have legal residency in the EU/EER member state of a service provider
– that this worker is in a legal employment situation with that employer, and that he/she is socially secured in that country.
– the identity of a contact person from the service provider, present in The Netherlands during the period of the service provision.
Duty to keep records
Also, specific documents from the posted worker(s) must be kept at the company that receives the service (duty to keep records): at your Dutch company location. Examples of these documents are work timesheets, payslips, employment contract, and proof of payment of social premiums.
Core terms and conditions of employment
This system has been created to allow the Labour Inspectorate to check whether the obligatory “core terms and conditions of employment” are met in the context of the provision of the cross-border service. Examples of such core terms and conditions are maximum working and minimum rest periods, the minimum number of paid vacation days, and minimum wage, including overtime pay.
I need to provide services in another EU/EER country. Or I receive staff at my Dutch work location from a company that is located in another EU/EER country. What do I need to do?
In the Q & A “I will receive a service from a company that is established in another EU/EER country, that is sending someone to my Dutch office location. What now?” is described that in the Netherlands, there is a notification system with additional obligations for services performed in The Netherlands by companies established in other EU/EER member states. We mentioned that non-compliance with these obligations results in fines for both the company in The Netherlands and the providing service company.
You have to be aware that in the other EU/EER countries, similar notification systems are in place. You need to get yourself informed about local requirements well before you start your service provision in other EU/EER country. In some of these countries, the local notification procedures are very bureaucratic, and conditions may be more challenging to meet than you would wish.
What happens if I am not compliant with Dutch immigration rules, and the foreigner working for me does not have the required work authorization?
You have to be very careful not ending up in a situation where the foreigner who is working for you, is performing his or her activities without the required work authorization.
The Labour Inspectorate applies fines for illegal employment for up to € 8000 per illegal employee. They can -in certain circumstances – be raised to € 12000 per illegal employee.
Also, the Dutch Immigration and Naturalisation Service (IND) can give penalties to employers that are not compliant with their duties of care, duties of administration, and duties to inform. Depending on the case, non-compliance can result in fines, potentially recover repatriation costs, and cancel the registered sponsorship of your company. To learn more about registered sponsorship, see the Q&A “I will receive a service from a company that is established in another EU/EER country, that is sending someone to my Dutch office location. What now?”