March 12, 2013

On June 1, 2013, the Dutch Immigration and Naturalization Service (IND) will implement simultaneously two, new immigration actsthat will require greater responsibility of Dutch company sponsors to submit accurate and complete employment-based applications, allow Dutch company sponsors to submit residence permit application proceedings on behalf of the foreign worker and consolidate a two-step residence permit application process into a single process.

What’s Changed?

On March 6, 2013, the IND released a statement announcing that two acts, the Modern Migration Policy Act (MMPA-Wet modern migratiebeleid) and the National Visa Act (Wet nationale visa or “MVV” Act), are to be implemented simultaneously on June 1, 2013. Please note that these acts do not apply to foreign nationals who are citizens of a European Economic Area (EEA) country.

In general, the MMPA affects regular purposes of stay for employment, family reunification and study.

Beginning June 1st, the MMPA will require that all Dutch company sponsors present a complete work permit application on behalf of the foreign worker and maintain ongoing immigration compliance through submission of accurate applications and in-house record keeping. Of notable benefit to foreign workers will be the ability for a Dutch company to file either a MVV/residence permit application or a traditional residence permit application the worker’s behalf.

The “Provisional Residence Permit” or MVV (“Machtiging tot Voorlopig Verblijf”) is a 90-day temporary residence permit affixed as a vignette in the passport for those foreign nationals who require an entry visa to the Netherlands and apply for a long-term residence permit. Currently, this is done as a two-step process requiring (1) an application for an MVV at a Dutch consular post and (2) submitting an additional residence permit application after entry into the Netherlands.

The proposed changes under the MMPA for the residence permit application are outlined as follows:

  • In the future, sponsors and foreign nationals will be able to use the Admission and Residence Procedure (TEV), thereby avoiding the two-step process. After the Consulate issues the MVV, the IND will automatically grant the residence permit.
  • Foreign nationals who are not required to apply for a regular MVV will be subject to the regular residence permit procedure. However, while the foreign worker is outside the Netherlands, the company sponsor will also be able submit the residence permit application to the IND on his or her behalf.

Additional changes under the MMPA are also as follows:

  • Sponsors fulfill an important role in the migration policy. The sponsor is the person or organization (e.g., a Dutch company or education institution) with an interest in the relocation of a foreign national. While sponsors may submit residency applications on behalf of a foreign national, they are also entitled to lodge objections and appeals.
  • Legal entities and businesses in the Netherlands should have themselves qualified by the IND to sponsor foreign nationals. As authorized sponsors, while there are legal obligations there may be immigration benefits extended to certain sponsors.

*See the IND’s “Rights and Obligations” section:

(http://english.ind.nl/themas/momi/Rechten_en_plichten/index.aspx)

Also, prior to filing any work permit application, sponsors such as education institutions, au-pair agencies and employers of highly-skilled migrants are required to be authorized by the IND.

While not yet defined by the IND, companies should be aware that sponsoring foreign workers with accompanying family members may be adjudicated on a case-by-case basis due to recent tightening of Dutch family reunification laws

(http://www.pro-linkglobal.com/resources/immigration-alerts/2012/netherlands-stricter-family-reunification-requirements-are-to-go-into-effect-by-october-1-2012-a211.aspx).

All sponsors have legal obligations. Under the MMPA, the IND will have more authority to take action against both sponsors and foreign nationals who do not fulfill their legal obligations (e.g., foreign nationals submitting false or inaccurate information or companies submitting incomplete work permit applications).

For residence permit applicants, once introduced, the new policy may affect existing residence permit holders. Depending on the date of when the first residence permit application is submitted, the MMPA may require amending certain categories of residence permits already granted.

ACTION ITEMS FOR EMPLOYERS

On and after June 1, 2013, companies and assignees should be prepared for implementation of these new acts to take some time and to train the IND/border staff on such aspects as new residence permit biometrics technology, which may affect the issuance of residence cards. Please be advised that this act is also being evaluated for implementing possible, additional requirements.

The IND will implement and enforce the MMPA. The act offers the IND instruments for effective supervision and visible enforcement with respect to migrants and sponsors.

One, noticeably direct impact this new regulation would have is on the Skilled Knowledge Migrant Worker program (“kennismigranten”), a popular work permit category used by Dutch companies to sponsor highly-skilled IT or specialized knowledge workers outside the ICT or traditional work permit program.

As indicated above, Dutch companies wishing to sponsor this profile of employee must be registered as a qualified sponsor with the IND. For those companies intending to send this type of worker to the Netherlands and who are not already registered, it is highly recommended to work with your Dutch immigration supplier to register with the IND prior to the June 1st deadline to avoid potential, additional authorization requirements.

From a corporate compliance perspective, sponsors and migrants will have statutory obligations under the MMPA to submit accurate and complete applications to the IND, along with other, ongoing immigration compliance requirements, such as the obligation to provide the government with correct information and to keep updated records.

As part of these new compliance requirements, a significant benefit is that the MMPA also provides that on and after June 1st, company sponsors can submit an application for a residence permit for migrants.

Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Glenn Faulk, Senior Manager, Knowledge Management. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in the Netherlands to provide you this update.

Information contained in this Global Brief is prepared using information obtained from various media outlets, government publications and our KGNM network of immigration professionals. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content posted or published by Pro-Link GLOBAL that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. Interested parties are welcome to contact the Knowledge Management Department (km@pro-linkglobal.com) with any additional requests for information or to request reproduction of this material.