Transferring highly-skilled workers
We look at whether the knowledge migrant system in the Netherlands can apply to Indian workers who are currently employed by a US company, but who will need to transfer to a Dutch subsidiary to work on an intermittent basis.
Perhaps we will make use of that special programme for highly skilled people. Is that possible? The Indian nationals are worried about obtaining Dutch residence permits. That seems to be quite a challenge. Is it really necessary to arrange for Dutch permits? What are the risks we do not apply for the right kind of Dutch paperwork? Any feedback is much appreciated!"
Patrick Rovers answers
My recommendation is to follow Dutch rules and regulations at all times. It may be difficult to obtain the right kind of Dutch entry, work and residency documents for your Indian employees but it will save your company and the beneficiaries a lot of hassle and problems in the long run. Besides that, your Dutch subsidiary runs a genuine risk of significant fines if and when it employs non-EU citizens in breach with Dutch law.
Making use of the knowledge migrant system (KMS) may be an option. In general the Dutch subsidiary first needs to be accepted by the Dutch immigration service (IND) as a worthy KMS participant. The Dutch immigration service started the implementation of the knowledge migrant system at the end of 2004. All knowledge migrant related procedures are monopolised by the IND, so if the Dutch subsidiary wants to legally employ Indian nationals it will have to deal with the service. Over the years the reputation of the IND was repeatedly blemished, often following a 'witch hunt' or hype by the Dutch media.
Recently the political head of the Dutch immigration service (IND) Rita Verdonk, the former minister for Aliens Affairs and Integration, was forced to hand over her IND responsibilities to the minister of Justice, Ernst Hirsch Ballin. Whether this will have any serious repercussions on the way IND conducts its daily business is yet to be seen. Currently, three political parties are negotiating the formation of a new coalition following last year's general elections. How the new coalition will govern the IND is uncertain.
The knowledge migrant system was set up to facilitate the entry of non-EU employees into the Dutch labour market, allowing them to bypass the application for a separate Dutch work permit if, and when, certain conditions are honoured by the prospective knowledge migrant and the knowledge migrant employer. Unfortunately, the knowledge migrant scheme rules and regulations are fairly detailed, and the KMS procedures sometimes take up a considerable amount of both the employer's and beneficiary’s time and effort.
However, according to recent IND figures the knowledge migrant scheme has been successful. Over 2006 a total of 3876 applications for knowledge migrant entry visas were filed, of which 3575 were approved. As far as knowledge migrant residence permits are concerned; last year 3934 applications were filed and 3710 applications were approved. A total of 1046 foreigners who were already legally residing in the Netherlands applied for a knowledge migrant residence permit in 2006. The IND approved 843 of these applications.
If you take into consideration that the IND issued a grand total of 77263 residence permits in 2006 (following so-called first applications, and thus excluding the number of extensions) one will have to agree that the impact of the knowledge migrant scheme is modest, to say the least.
Patrick R. Rovers,
Lawyer with Van Velzen CS
This column 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 European rules and regulations regarding foreigners, policy, work permits, visas, and residence permits are continuously subject to change.
Write to Patrick Rovers and Hans van Velzen
2 February 2007
[Copyright Expatica 2007]
Subject: Life in Holland, Dutch immigration laws, knowledge migrants