M. (Miriam) Berendes-Curreymr. D.O. (David) Wernsingon
When an employer facilitates the immigration procedure for one of their employees with a non-EU/EEA/Swiss nationality, it may be expected that the employer is aware of all the conditions related to the purpose of stay in question. The moment a third-country national applies for a position with the employer and is already in possession of a valid residence permit, there is a chance that the employer will wrongly assume that this person is allowed to work in the Netherlands under regular conditions.
Last week we explained in our blog that for third-country nationals it is required to include a copy of the residence permit and/or work permit (TWV) in the administration. But how do you know which rights and obligations are attached to which residence permit? This can be determined using the indication of work status on the back of the residence permit.
In this blog, we will highlight four purposes of stay and explain the deviating conditions and points of attention for employers. It concerns the purposes of stay:
Work in paid employment;
Residence with a family member or relative;
Search year for highly educated persons.
Work in paid employment
There are several purposes of stay that fall under the category 'Work in paid employment’. For these purposes of stay, it is initially required to apply for a combined residence and work permit (GVVA) or work permit (TWV). Once the foreign national has worked in the Netherlands for 5 years, he becomes 'free on the labour market'. The indication of work status for this particular purpose is as follows:
Arbeid in loondienst. Arbeid vrij toegestaan. TWV niet vereist. Een beroep op algemene middelen kan gevolgen hebben voor het verblijfsrecht.
Based on this description, an employer may wrongly assume that this third-country national can work without being subject to additional conditions. With all the associated consequences.
In order to have an employee with this residence endorsement perform work within your organisation lawfully, the following matters are of minimum importance:
Period of validity of the residence permit;
The employee changes employer within the 3-month search period;
The employer registers himself as a (recognised) sponsor of the foreign national with the IND;
There is an agreement for paid employment.
If the employer or employee does not comply with one of the above conditions, there is a risk that the residence permit will be withdrawn and consequently illegal employment.
The Netherlands has many international students with a nationality from outside the EU/EEA. In most cases the educational institution acts as the (recognised) sponsor of these third-country nationals. They will then receive a residence permit with the following indication of work status:
Studie. TWV vereist voor arbeid van bijkomende aard, andere arbeid in loondienst niet toegestaan.
In most cases, obtaining a work permit is a time-consuming and labour-intensive procedure. For students this procedure is simplified - for example, it is not necessary to demonstrate scarcity - but other conditions are attached to the work. For example, a choice must be made whether the student will work a maximum of 16 hours per week throughout the year or full-time during the summer months.
It is important that this choice is made per year and applies in its entirety. The latter means that the student may work a maximum of 16 hours per week in total and not per employer. Also important is that there is no option to mitigate the 16 hours between weeks, so one working 12 hours in one week and 20 in the other week is not allowed. It is wise to pay attention to this in special clauses in the employment contract. Since Maes Law also has an Employment Law department, we can provide advice on this if necessary.
The TWV is applied for at the UWV and the procedure takes on average a maximum of 5 weeks. It is important that the student only starts working once the work permit has been entered into the administration and after the start date stated. Any extension of the work permit must be requested from the UWV in good time in order to prevent the student from being (temporarily) prohibited from working.
The salary administration also has an important task here to ensure that the hour criterion is not exceeded. If this is exceeded, it is a case of illegal employment.
Staying as a family member
There are many reasons why someone may have a residence permit as a family member. There are also various labour market remarks that require you, as an employer, to be extra alert to whether the person in question is allowed to work and, if so, under what conditions. Common indication of work status are, for example:
Arbeid wel toegestaan, TWV vereist.
Arbeid vrij toegestaan. TWV niet vereist.
Arbeid toegestaan, mits TWV is verleend.
Arbeid wel toegestaan. TWV niet vereist.
Arbeid niet toegestaan.
In all cases, the family or household member of the (intended) employee will act as sponsor. This means that the employer does not have to register with the IND as sponsor. However, an important note should be made here: if something changes in the sponsor's situation or the relationship to the sponsor, this can have consequences for the employee's right of residence. In this case too, it is advisable to have specific clauses in the employment contract.
Search year for highly educated persons
If someone has obtained a bachelor's or master's degree in the Netherlands, or has obtained a master's degree from an educational institution that is on at least two of the rankings of the Top 200 universities, this person can qualify for a so-called 'search year highly educated persons'. The accompanying indication of work status reads as follows:
Het zoeken naar en verrichten van arbeid in loondienst. Arbeid vrij toegestaan. TWV niet vereist.
In principle, a third-country national with this indication of work status can work for any employer without restrictions. However, both the employer and employee must be alert when the end date of the search year comes into view. At that moment a new residence permit - with a different purpose of stay - will have to be applied for. It is often assumed that the employee converts his search year into a residence permit for 'Work as a Highly Skilled Migrant'. However, the employer will have to be registered in the 'Public Register Recognised Sponsors' for the purpose of stay of 'Regular Labour and Highly Skilled Migrants'. This is often discovered too late by the parties involved, which results in a very unfavourable situation.
The coming weeks we will pay more attention to the so-called highly skilled migrant scheme. Next week, we will publish a blog that goes deeper into the (recognised) sponsorship and the conditions attached to it.
Do you have any questions about this topic? Please do not hesitate to contact Miriam Berendes-Currey or David Wernsing. They are happy to assist you!