Multinational corporate groups with entities in the EU, including the Netherlands, can transfer their personnel to one or more of these entities.
As of 29 November 2016, the Netherlands implements EU Directive 2014/66 on the intra-company transfers of non-EU nationals (third-country nationals) to the entities of corporate groups in the member states that have adopted the Directive.
As a result, the Netherlands administers three programs to work authorize an intra-corporate transfer (ICT):
- the EU ICT program
- the national highly skilled migrant (HSM) program
- the national ICT program
Selecting the right program
Selection of the right program is not only up to the employer as certain transfers can only be submitted under one specific program. In some cases, an application under the wrong program can lead to a rejection of the transfer.
The EU ICT program is prioritized in favor of the national ICT scheme and the highly skilled migrant program. In practice, this means that an application for an EU ICT permit will first and only be assessed against the criteria of the EU ICT program. If such application does not fall within the scope of this program or does not meet the conditions of the Directive, it will be rejected.
On the other hand, if the adjudicators find that an application for a national ICT work permit or a highly skilled migrant permit falls within the scope of the EU ICT program, the application will be assessed under the terms and conditions of the ICT Directive and if found compliant, an EU ICT permit will be granted instead. In this way, the Netherlands gives priority to the EU ICT program as it should, but at the same time has saved its national programs for transfers out of the scope of the Directive.
Because the procedural frame of the programs leaves little space for error, it is important to be well informed of the options and implications of these programs and to seek expert advice and assistance of an immigration lawyer when in doubt.
Employers who want to transfer American or Japanese employees to an establishment in the Netherlands may decide themselves whether they apply for an ICT permit or a highly skilled migrant permit.
EU ICT-program
The ICT Directive harmonizes the regulations of EU member states for the transfer of corporate employees and facilitates the mobility for corporate employees within the EU.
Implementation of the Directive in 24 member states of the European Union, including the Netherlands (Denmark, the United Kingdom and Ireland do not participate) has led to:
- a combined residence and work permit for corporate employees, the ICT–permit
- mobility: when an employee has an ICT-permit in a member state, he or she can be transferred to an entity of that company in another member state, with relative ease
- EU legislation takes precedence over national legislation
- additional entry requirements
Employee selection
The Immigration and Naturalization Service (IND) applies the Directive to those employees who are:
- non-EU nationals
- under contract with an entity of the company outside the EU at the time of application and during the transfer
- employees to be transferred to an entity of the company inside the EU
- managers, specialists, or trainees, as described in the Directive
Definition corporate group
A corporate group is defined differently from the definition in the Dutch regulation for application of the Foreign Nationals Employment Act (WAV); a minimum annual turnover of 50 million euros is not mentioned. According to the Directive, a corporate group consists of two or more companies that are linked by:
- holding the majority of the issued capital
- possessing the majority of the shares
- appointing more than half the members of the administrative, management or supervisory body, or
- being managed by the parent company
Definition manager
A manager is a senior staff member who supervises the host entity, overseen by the board of directors, shareholders, or such persons, with the following tasks:
- supervising the host entity or one of the subsidiaries
- overseeing and monitoring senior staff
- implementation of human resources
Definition specialist
A specialist is an employee who possesses specialized knowledge that is essential for the activity, the applied techniques, or the management of the host entity. This may involve:
- specific (technical) knowledge
- specific qualifications (professional experience)
- having an accredited profession
Definition trainee
A trainee has a master's degree and is transferred to an entity for the purpose of career development or training in business techniques or methods under the following circumstances:
- there is a trainee contract
- salary is paid during the transfer
- the transferee is being prepared for a future position with the company
The permit
The ICT permit is a combined work and residence permit. ICT permit holders are entitled to work as a transferee. Other work is permitted, but after successful application for a regular work permit.
The permit for managers and specialists can be granted for a maximum of 3 years. The limit for an ICT trainee is 1 year. At the completion of the ICT limit, managers, specialists, and trainees must observe a mandatory waiting period of 6 months before a new ICT permit can be requested for a transfer to the Netherlands.
Family members (including children up to 18 years) can join. Accompanying children must be younger than 18 years at the time of application. Family members have free access to the labor market and are allowed to work as an entrepreneur.
Mobility
Employees with an ICT permit are eligible to apply for ICT mobility: the transfer to any other entity in an EU member state other than the state that provided the ICT permit. ICT mobility is available for short and long term stay.
Short term mobility
Short term mobility covers a period of at most 90 days within 180 days. The main residence remains in the member state that provided the permit. In the Netherlands, this short-term stay must be notified to the Employee Insurance Agency (UWV). Work can start right away.
Long term mobility
Long term mobility covers a term of more than 90 days within 180 days. This type of mobility requires an additional, light version of the EU ICT permit. Duration of employment, job requirements and trainee contract are not assessed again. Work can start right away. Also, the applicant does not require an entry clearance visa (MVV) to enter the Netherlands.
In case the period of transfer to the Netherlands exceeds the duration of the initial EU ICT permit, the application is assessed in full, including the requirements listed below.
The requirements
To be granted an ICT-permit, the following general conditions must be met:
- the foreign national is a manager, specialist, or trainee
- the foreign national is qualified at a university or undergraduate level
- professions that appear on the list of regulated professions published by the Netherlands, such as pharmacist, architect or doctor must have accredited foreign qualifications
- the foreign national has been employed by the company for at least 3 months
- the foreign national possesses a valid employment or trainee contract with an employer outside of the EU or an assignment letter from an employer
- the foreign national has as principal residence outside the Netherlands at the time of application
- the foreign national has not resided in the Netherlands based on the ICT-Directive in the last 6 months
- the foreign national returns to a corporate group outside the EU after the transfer period expires
- the salary meets statutory minimum wage and vacation pay requirements
- the salary meets the industry benchmark considering position, age, expertise, and experience
- the host entity and sending entity belong to the same corporate group
- the host entity is not established for the purpose to facilitate entry into the EU
- the transferee spends the longest time in the Netherlands
- the host entity has not been previously sanctioned for undeclared work or illegal employment
- the host entity conducts economic activities; secondment of company employees in the Netherlands is allowed as a core economic activity of the entity
- there is no reason to reject the application because it does not meet the general admission requirements of the Aliens Act; art.16 Vw.
The application
The application is submitted with the Immigration and Naturalization Authority (IND). A decision should be taken in 90 days.
Government filing fees for an EU ICT application can be found here.
Employers who are recognized as a sponsor by the IND are entitled to a fast-track procedure with an estimated 2-week decision period. The following documents must be submitted:
- Antecedents Certificate, copy of passport and direct debit
- Assignment letter for ICT transfer (including time frame, position, salary, terms for employment and intention to return
or
In case of doubt, the UWV (Employee Insurance Agency) assesses industry benchmark compliancy of the ICT-salary.
Transferees who are sponsored by employers not registered with the IND, must provide additional documents:
- an employment contract
- CV with copies of diplomas and certificates; in case of doubt, they must be certified and/or legalized
- in case of a regulated profession: certificate of acknowledgement
- a completed and signed appendix ‘Sponsor Declaration’
Applications for regular applicants are always assessed by the UWV.
The national programs
When the EU ICT program was announced, the Dutch government declared that the current national ICT programs –the highly skilled migrant program and the combined permit for residence and corporate labor- continue to exist. Applications that do not fall within the scope of the EU ICT program can be submitted under these national programs.
For more information about intra corporate transfers, please contact Marcel Reurs or Bram van Melle.
