• Netherlands: New Rules and Procedures for Employers and Highly Skilled Migrants to Take Effect in 2011
  • September 21, 2010
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Immigration procedures in the Netherlands will undergo significant changes on January 1, 2011, when new legislation recently enacted by the Dutch government takes effect. Under the Modern Migration Policy Act, all employers and foreign nationals will experience simplified filing procedures and new legal obligations. Employers participating in the Knowledge Migrant Scheme (kennismigrantenregeling) will have more compliance and processing responsibility, but they and their highly skilled migrant employees will benefit from shorter processing times. The legislation will also affect many other immigration procedures, in particular those used by foreign nationals seeking residence permits in the Netherlands for employment and other purposes.

    Simplified Filing Procedures

    Employers and foreign nationals will be able to use a new Admission and Residence Procedure (Toegang en Verblijf - TEV). Under the new TEV Procedure, a single application for an entry visa for long purposes (Machtiging tot Voorlopig Verblijf - MVV) and a residence permit with work authorization will be sufficient. Once the MVV is issued, the IND, the Dutch immigration authority will automatically grant the residence permit with work authorization. (Currently foreign nationals must first obtain the MVV, travel to the Netherlands, and then apply separately for the residence permit after entry.) In addition, sponsors will be able to apply for residence permits on behalf of foreign nationals who are still abroad, which should greatly simplify the process for nationals of countries that are entry visa-exempt for long stays in the Netherlands.

    New Sponsorship Obligations for Employers and Foreign Workers

    Under the new system, employers sponsoring foreign workers will be legally obligated to: 

    • Inform IND, the Dutch immigration authority, of any changes relevant to the foreign national’s purpose of stay; 
    • Maintain records of their foreign workers for five years after the sponsorship period has ended; 
    • Ensure careful recruitment and selection of Dutch workers before hiring foreign workers; and 
    • Ensure the foreign national's repatriation at the end of his or her assignment. The IND will be able to recover repatriation costs from sponsoring employers if it determines, within a year after the sponsorship period has ended, that a foreign worker remained in the Netherlands illegally.
    • Sponsors and foreign nationals will be subject to financial penalties if they do not fulfill their legal obligations.

    New “Authorized/Accredited” Sponsor Program

    The legislation will also introduce a new “authorized/accredited” sponsor program that will give participating employers access to a simplified and expedited procedure for obtaining residence permits with work authorization, with processing times of two to three weeks.

    Employers seeking to sponsor highly skilled migrants will be required to participate in this new program. Employers that are currently registered under the Knowledge Migrant Scheme (kennismigrantenregeling) to employ highly skilled migrants will automatically become authorized/accredited sponsors under the new system, provided they have successfully applied for at least one residence permit in 2010. Participation will be voluntary for all other sponsoring employers.

    Authorized/accredited sponsors are subject to all of the sponsorship obligations listed above, and are also required to inform the IND of any changes that are relevant to their authorized status. Authorized/accredited sponsors and their foreign workers will be subject to financial penalties if they do not fulfill their legal obligations. Sponsors may also have their authorization/accreditation suspended or canceled in cases of severe noncompliance, which can also ultimately lead to criminal prosecution.

    Transitional rules will apply to highly skilled migrants working for employers that do not become authorized/accredited sponsors until after the legislation takes effect on January 1. Existing highly skilled migrants will be able to continue residing and working under the old system until their residence permit expires, but the authorized/accredited sponsor obligations will apply if a highly skilled migrant filed his or her application on or after July 1, 2010.

    The content herein is provided for informational purposes only. To read more Fragomen Client Alerts please visit: http://www.fragomen.com.