To be eligible for a residence permit with the purpose of stay as 'Highly Skilled Migrant' the applicable salary criterion is leading, together with, of course, the employment at a recognised sponsor. In addition, the agreed salary must be in line with the market, must be contractually agreed and must be paid monthly into a bank account in the name of the highly skilled migrant. In this blog we will discuss which salary criterion is applicable and which additional points of attention are necessary.
First of all, it is important to know that 3 categories of salary criteria are used within the highly skilled migrant scheme:
Reduced salary criterion;
Highly skilled migrants younger than 30 years;
Highly skilled migrants 30 years and older.
Since 2014, for these 3 groups, the salary criterion have been established to which they have to comply on a monthly basis. The corresponding amounts are as follows:
This is a gross salary (excluding holiday allowance) in which also fixed contractually agreed allowances and benefits in kind are taken into account. This means that certain allowances and benefits can also be included, provided that these are paid monthly - without reservation - and have been agreed upon contractually. It is also important to take into account that the net equivalent of the gross agreed upon salary is actually paid to the highly-skilled migrant - at least the salary that meets the applicable salary criterion. This also applies in the case of illness or unpaid leave, for example. Exceptions exist in the case of maternity and parental leave, whereby the highly skilled migrant - provided this has been properly and timely communicated to the IND - may temporarily earn a salary below the established salary criterion. Please feel free to contact us for a further explanation.
The salary criteria are indexed annually on 1 January. However, this does not mean that the salary of the highly skilled migrant working for your organisation should also be indexed annually. The salary criterion that applies when the employment contract is concluded will, in the vast majority of cases, remain in force until the residence permit of the highly skilled migrant has to be renewed. For example, if you enter into an employment contract for a period of 2 years - and a residence permit is applied for and issued for the same period - the salary criterion that applies at the start of the employment will continue to apply during these 2 years.
But how do you determine which salary age criterion applies at the start of the employment or in the case of extending the residence permit? The IND has created a table for this purpose that can be used as a guideline. Below is an additional explanation of the applicable salary criterion per group and the related points of attention.
Reduced salary criterion
Someone qualifies for the reduced salary criterion when he or she meets the conditions for the so-called search year. What these conditions are, we have already explained in a previous blog. A big advantage is that the entry level salary is many times lower than the salary applicable to highly skilled migrants younger than 30 years of age and highly skilled migrants of 30 years of age and older. This ensures a better position on the labour market, as the newly graduated highly skilled migrant is more likely to be considered for a position where the salary in line with the market is more towards the reduced criterion.
Another advantage is that the highly skilled migrant remains in this category throughout his career as a highly skilled migrant. Irrespective of his age and regardless of how often he changes employers. What is crucial is that no residence gap occurs. If this does occur, then - depending on his age - the salary criterion will be applied to highly skilled migrants younger than 30 or to highly skilled migrants aged 30 and older.
When an organisation hires someone during the search year for highly educated persons, it is important to already take into account the transition to work as a highly skilled migrant. After all, the salary of the highly skilled migrant has to be in line with the market. For example, if you offer the employee a monthly salary of €2,000 during the search year and state a salary of €2,543 when applying for work as a highly skilled migrant, this may raise questions with the IND about the salary being in line with the market. Is this the case with a (future) highly skilled migrant in your organisation? Please feel free to contact us for additional advice.
Highly skilled migrant younger than 30 years
A lower salary criterion applies to highly skilled migrants under the age of 30 than to highly skilled migrants aged 30 and above. Again, this is related to the market conformity of the wage. A young highly skilled migrant will often not yet qualify for the high salary criterion that applies to a highly skilled migrant aged 30 and over.
If the highly skilled migrant turns 30 during his employment, the salary criterion for highly skilled migrants younger than 30 shall continue to apply. Otherwise, the highly skilled migrant would receive a salary increase of 35-40% from his 30th birthday, something that is not considered market-consistent in The Netherlands. It is important to note, however, that the salary criterion for highly skilled migrants under 30 years of age will only apply if there is no residence gap and the highly skilled migrant continues to work for the same employer. The latter is a particularly important point to consider when an organisation has several business units or when there is work through a temporary employment agency. When a highly skilled migrant of 30 years and 1 day old is moved to work under employment at another group entity, the much higher salary criterion of 30 years and older will apply.
Highly skilled migrant 30 years and older
For highly skilled migrants aged 30 years and older, the basic rules for the salary criterion apply, as explained earlier in this blog: The salary criterion is determined on the date that the highly skilled migrant starts working, and is re-indexed when the residence permit is extended.
The rules surrounding the determination of the salary criterion for highly skilled migrants can cause quite some variation in the payroll administration. As a result, it is not always easy to have an automated check performed to determine whether all highly skilled migrants meet the salary criterion that applies to them. Thus, different variations may occur in the payroll administration of 2022. After all, we are dealing with 3 different groups (reduced, <30 years and 30 years and older) and also with salary criteria that apply to different years, depending on when the employment started or when the extension for the right of residence was requested.
In practice, we see that errors are regularly made in the payroll administration with regard to the application of the (correct) salary criterion. The IND, however, does enforce this with all its consequences. Do you want to be sure that your (payroll) administration is in order? Then be sure to contact us for individual advice.
Next week we will elaborate on the association treaty between Turkey and the EU. For Turkish employees - including highly skilled migrants - a number of exceptions apply which we will explain in more detail.
Do you have any questions about this topic? Please do not hesitate to contact David Wernsing. He is happy to assist you!