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THE NETHERLANDS: Implementation of ICT Directive May Actually Disadvantage Non-EEA/EU Intracompany Transferees

13 Apr

On November 29, 2016, the Netherlands implemented the ICT Directive, European Union (EU) Directive 2014/66. This directive streamlines ICT requirements across the EU and increases mobility for short-term projects in other EU Member States.  However, the implementation of this directive to existing Dutch immigration laws may actually be less advantageous because it imposes additional restrictions and burdens on non-EEA/EU intracompany transferees that were not present under the previous Dutch ICT scheme.

Foster previously reported on implementation of this directive for intracompany transferees in our 2014 Foster Immigration Update©, EUROPEAN UNION: EU DIRECTIVE 2014/66 ESTABLISHES SIGNIFICANT CHANGES TO INTRA‐COMPANY TRANSFER WORK PERMIT PROCESSES, at the Spring 2017 Foster Immigration Update, and most recently in our March 27, 2017, Immigration Update, ITALY: New Intra Company Work Permit Guidelines and the 2017 Quota Announced for Non-EEA Foreign Workers.

Goals of the ICT Directive

The goal of the directive was to streamline intracompany transferee work permit requirements for non-EU/EEA nationals across EU Member States. The directive also sought to increase mobility for intracompany transferees to other EU Member States for short-term projects. The implementation of this directive has increased uniformity and mobility to the countries that have not opted out of the directive, but each country faces their own specific challenges and concerns in attempting to comply. Specifically, the United Kingdom, Ireland, and Denmark have opted out of this directive, and many countries in Europe have yet to fully implement the directive. Contact your Foster Immigration Attorney for more information about the countries that fall under this directive as of the date of application.

Certain Immigration Options Are Foreclosed to Non-EEA/EU Nationals

In the effort to standardize and streamline requirements across the EU for non-EEA/EU intracompany transferees, the directive actually forecloses other immigration strategies that may have been more advantageous to companies employing foreign nationals. An ICT permit based on the directive in the Netherlands may only be issued for a maximum of three (3) years for managers and technical specialists or one (1) year for trainees. The ICT permit may not be extended from within the Netherlands and the Netherlands requires that the ICT permit holder depart for a period of at least six (6) months before applying for a new ICT permit.

By contrast, the Dutch knowledge migrant permit (“kennismigrantenvergunning” or “KMR”) may be granted for a period of five (5) years based on the employment contract in place and may be renewed without limitation. At this time, the KMR permit generally may be adjudicated much more quickly than the ICT permit in the Netherlands and permits spouses to engage in work activities where ICT dependents may not. The KMR strategy may have been advantageous and applied to non-EEA/EU nationals who are intracompany transferees. The ICT Directive forecloses this option to non-EEA/EU nationals and makes it mandatory that such qualified applicants apply under the ICT permit based on the directive.

Additional Restrictions under the ICT Directive Compared to the Dutch ICT Work Permit

The Dutch ICT Work Permit based on the directive requires intracompany transferees to have three (3) months tenure with an affiliate company abroad, whereas the KMR scheme provided for new hires. As a result of the directive, a newly hired non-EEA/EU employee will not be able to transfer employment to the Netherlands until after gaining three (3) months experience with an affiliate abroad. The ICT permit also requires a bachelor’s degree for eligibility purposes, whereas the KMR did not.

Foster will monitor the implementation of the EU ICT Directive across Member States and will provide future updates via Foster’s website at www.fosterglobal.com and via future Immigration Updates©.