Many people have faced unemployment in the Netherlands and other countries following the 2008 financial crisis. The stakes have been even higher for so-called highly skilled migrants, however, whose residency rights are directly tied to their employment contracts. Ester de Vreede says highly skilled migrants should keep positive about their options, but stresses that they must become aware of their rights.  

De Vreede founded De Vreede Advocaten in 2006, a boutique law firm that specialises in employment and immigration issues and mainly serves highly educated workers and their employers. “We are known for being creative,” de Vreede says. “We are always thinking of new ways to solve issues for highly skilled migrants. And it works. We are celebrating our fourth anniversary today.”

Before the crisis, up to around 600 workers were arriving in the Netherlands each month from countries such as the U.S., Japan and Iran. They came at the invitation of Dutch companies, many in the IT or marketing industries. These workers often have families back in their homeland who rely on their income. Others have moved their families with them to the Netherlands.

For most highly skilled migrants facing termination, residence status is the top concern. “In some cases, workers have lived here for many years,” says Alexandra Nekrasova, client liaison officer with De Vreede Advocaten.  “If they lose their job, there’s a lot to decide. Do they stay? Do they look for another job? Do they leave?”

Don’t sign away your rights
Highly skilled migrants do have the right to stay on in the Netherlands for three months after termination in order to look for another job, but only if the job loss is not considered their fault. Frequently,  this is misunderstood by both employees and employers who don’t completely understand the law.

It is common practice in the Netherlands for an employee who is being made redundant to sign an agreement with their employer. However, if a highly skilled migrant signs such a document, he in essence agrees to his own dismissal.

De Vreede says it is very important that highly skilled migrants do not sign any such agreements. “If you sign an agreement with your employer, then you agree to the termination. And since you agreed, then it’s your ‘fault,’ as immigration sees it. So you have to go.”

Seek legal advice
Increases in workers becoming unemployed or changing jobs over the last two years have created new issues for which there are no legal precedents. Employers themselves are not always aware of the laws, so it is advisable for anyone who suspects their job is at risk to seek the advice of a firm that specialises in employment and immigration law.

De Vreede Advocaten regularly advises companies with foreign employees on board. Ester de Vreede cites one case in which an employer was forced to lay off 60 highly skilled migrants. One of the workers contacted de Vreede, who immediately got in touch with the employer. The employer had not realized that by asking the workers to sign termination agreements, he was causing them to lose their residency rights.

Once this was explained, the employer contacted the courts to ensure the terminations were not considered the fault of the employees, which meant the workers could remain in the Netherlands for three months and apply for unemployment benefits. The cooperation between the employers and the employees is crucial, says de Vreede.

For those who have been working in the Netherlands for three years, it is also possible to change their status so they are no longer considered highly skilled migrants. This means they can apply for jobs outside of the highly skilled migrant category, and that they do not need a work permit. However, the status of the worker can only be changed while they are still employed, so this needs to be done before termination. Again, many employers do not know this.

Be aware of changes in immigration policy
The situation will be further complicated when new immigration laws come into effect on 1 January 2011. There will be enormous changes to the immigration system, including a new highly skilled worker scheme that puts more responsibility on the employer to ensure a worker’s status is legal and correct.

For example, the employer will be responsible for verifying that a worker’s passport is valid. “Sounds easy,” says de Vreede, “but it’s difficult, because you never know when it’s false. And you have to declare that you are sure, because otherwise you have to pay fines. If someone is illegal, it costs the employer EUR 8000 per person.  So the employers are not all too pleased.”

The idea was to make the process faster and easier for the workers, but it has actually made them more dependent on employers to know the rules.

Consider all options
According to de Vreede, if you visit a lawyer in time, you won’t have any issues. It is more difficult if you have already signed an agreement and your employer has alerted immigration, but even then you have some options.
You can, for example, go back to school, start your own business or, if you spouse is working and earning enough money, you can be sponsored by your spouse and stay in the country.  Be sure and explore all your possibilities.

3 September 2010
Expatica / Tracy Brown

Have questions about your employment or residence status? Visit De Vreede Advocaten at  the “i am not a tourist” Fair, a one-day fair for internationals living in or moving to The Netherlands. Expatica's 2010 fair will have all the resources from previous years, but with the extra attention given to lifestyle and community related services. Information on the programme can be found on our fair website.