Both the United States and the Netherlands allow companies to send specialised employees to offices in the other's country. Patrick Rovers explains.

During the Internet hype in the 90's, the Netherlands was swamped by relatively large numbers of US nationals coming to this country, especially the Amsterdam area, to work and live.

Migration, in this case, works both ways. Following Belgium, Germany and Great Britain, the United States is the most popular country as far as Dutch immigrants are concerned. It is expected that a total of 100,000 Dutch citizens will immigrate in 2003 alone, a couple thousand of which will move to the US.

In regards to legally working on both sides of the Atlantic, a whole range of work permit, visa and residence permit requirements should be reviewed before an international assignment is even considered.

From the US to the Netherlands

The Netherlands and the United States have special work permit arrangements for a certain category of temporary workers from abroad, the so-called intra-company transferees. In this article I will shortly describe the Dutch and the US rules and regulations and relate the similarities and differences of the two.

The Dutch intra-company transfer regulation for work permits is based on a number of starting-points; the size and locations of the organisation of the employer, the total yearly revenue of the organisation, the gross salary the transferee, and the nature of the temporary assignment.

First of all, the organisation or employer has to consist of a number of subsidiaries, located in several different countries. This group of companies has to be profit-oriented. The international group of companies has to meet the Dutch Central Employment Office´s ´concern status´ definition. The revenue of the group has to reach (at least) EUR 50 million a year.

The US transferee’s gross salary should be EUR 50,000 or more a year (actual gross salary including a certain percentage for a company car and housing allowances). The US transferee has to fill a key position on a managerial or specialist level.

If and when these starting-points are fully met, the position can be filled by the intra-company transferee. The Dutch subsidiary of the international group of companies is not required to offer aforementioned position to interested third parties outside of the organisation, and is exempted from placing mandatory advertisements in newspapers, weeklies and on the Internet.

The Central Employment Office will issue a work permit with a three-year maximum, based on the advancement of international trade contacts. After issuance of the work permit, the US transferee should apply and secure a residence permit. US nationals are exempted from the MVV requirement (a special kind of visa requirement) and may enter the Netherlands based on a valid US passport.

The US transferee then has to register with the local municipality and apply for a residence permit with the local Foreign Police within three days after his or her arrival.

From the Netherlands to the US

The American work permit & visa regulation for intra-company transferees, known as the L category, is based on the following starting-points: the legal structure and organisation of the employing companies, the amount of time the intra-company transferee worked for the ´initial´ non-US employer, and the nature of the temporary assignment in the United States of America.

First of all, the employing companies are required to have a special corporate relationship (subsidiary, branch or affiliate status). Secondly, the Dutch intra-company transferee must have worked for the initial non-US employer for a minimum of 12 months, within the three years preceding the actual US assignment.

Last but not least, the Dutch transferee has to fill a position in a managerial or executive capacity or must have specialised knowledge. For instance, in the case of a specialist assignment, the Bureau of Citizenship and Immigration Services (BCIS) may demand evidence of in-depth knowledge concerning services and products of the group of companies.

After issuance by BCIS of an L-work permit, the future US employer will receive a notice of approval. Based on this notice, the Dutch intra-company transferee can apply and obtain an L-visa trough the US Consulate General in Amsterdam.

How the US and Dutch regulations differ

Although the Dutch and US regulations aim to facilitate the international transfer of certain specialists, executives and managers within a designated group of companies, the way this aim is achieved differs enormously.

The Dutch regulation demands convincing proof of yearly group revenue & group size, and set a certain minimum salary requirement.

The US regulation emphasises on the nature of the assignment (executive, managerial or specialist) and demand a minimum employment history of 12 months with the group.

The way the Dutch Central Employment Office and the American Bureau of Citizenship and Immigration Services handle intra company work permit applications also differs. The Dutch organisation handles the application for free and usually within five weeks, their American counterpart charges a fee per application and may take several months.

If and when a US intra-company transferee has legally worked and lived in the Netherlands for three years (without any gaps), he or she will be eligible for a consecutive residence permit with the annotation "work permit not required".

There is no similar arrangement for Dutch transferees working and living in the US. Depending on their position within the group, they are allowed to work and reside in the US, based on valid work permits & visas, for a period of five to seven years.

This article is for informative purposes only, is general in nature, and is not intended to be a substitute for competent legal and professional advice. Dutch and American rules and regulations regarding foreigners, policy, work permits, visas, and residence permits are continuously subject to change.

July 2003

Patrick R. Rovers is a lawyer with Van Velzen CS in the Netherlands.