The Rights And Responsibilities Of Highly Skilled Migrants Under Dutch Law

[Editor2]

Introduction​

The Netherlands has positioned itself as a leading destination for highly skilled professionals in a competitive global labor market. The Dutch government, recognizing the importance of international talent, has developed a structured immigration system to attract and retain these workers. One of the most prominent pathways is the Highly Skilled Migrant (HSM) scheme, introduced in 2004. This program offers an efficient and business-friendly approach for foreign professionals to live and work in the Netherlands.

In 2024 alone, more than 21,000 "Knowledge and Talent" applications were submitted to Dutch immigration authorities, with a significant number falling under the HSM scheme. However, with the benefits of this program come specific responsibilities and regulatory compliance for both employers and employees.

Employer Obligations Under the HSM Scheme​

To employ foreign workers under the HSM scheme, companies must be designated as "Recognised Sponsors" by the Dutch Immigration and Naturalisation Service (IND). This status grants employers expedited processing of applications and access to international talent pools. However, employers must adhere to strict compliance requirements, including:

• Ensuring that employees meet the salary thresholds set by the IND.
• Notifying the IND of any changes in employment status.
• Maintaining accurate records related to the employment and residency of their foreign employees.

Employee Responsibilities and Compliance​

Once an employee is granted an HSM residence permit, they must comply with several conditions to maintain their legal status:

• Registering with a Dutch municipality upon arrival.
• Receiving a set salary level monthly, which must be directly deposited into their bank account.
• Informing the IND of any changes in employment or personal circumstances.
• Adhering to restrictions on the duration and frequency of stays outside the Netherlands.

Failure to meet these requirements can result in permit revocation and complications regarding future residency or naturalization.

Salary Requirements and IND Monitoring​

One of the key pillars of the HSM scheme is the salary threshold, which both employers and employees must respect. The salary must be:

• Paid in full each month.
• Deposited into the employee’s Dutch bank account.
• Kept above the minimum threshold as defined by Dutch authorities.

To prevent abuse or non-compliance, the IND actively monitors salary payments through the government system "Suwinet." If an HSM employee's salary drops below the required threshold, the IND may revoke the residence permit, leading to potential gaps in legal residency. Such gaps can impact eligibility for long-term residency or Dutch citizenship.

Challenges: (Un)Paid Leave and Sick Leave​

Employers and employees must navigate several challenges related to leave policies and salary thresholds. One key issue is how different types of leave impact an employee’s legal status under the HSM scheme.

Exceptions to the Salary Requirement​

Certain types of statutory leave as defined under Dutch labor law (WAZO) are exceptions to the salary threshold requirement. These include:

• Maternity, paternity, adoption, and foster care leave.
• Family care leave.

Employees on these types of leave can temporarily fall below the salary threshold without risking their residence status. However, this does not apply to unpaid leave granted under collective agreements (CAO) or company policies.

Additionally, highly skilled migrants exercising their right to strike (“stakingsrecht”) may also temporarily fall below the salary threshold without repercussions.

For such cases, both the employer and employee must:

• Notify the IND within 28 days.
• Provide proof of eligibility for the statutory leave.
• Maintain accurate records of all (un)paid leave and strikes.

Sick Leave Complications​

Sick leave presents a unique challenge for HSM permit holders. Under Dutch labor law, employers are required to pay at least 70% of an employee’s salary during illness for up to two years. However, there is currently no immigration exemption for sick leave, meaning that if an employee's salary falls below the HSM threshold due to illness, their residence permit may be at risk.

This creates a conflict between Dutch labor and immigration laws. Employers must carefully manage compliance to avoid permit revocation while still meeting their legal obligations under labor law.

Conclusion​

The Highly Skilled Migrant scheme offers significant advantages to both employers and international professionals, facilitating a streamlined process for work and residence in the Netherlands. However, the program comes with strict obligations related to salary, leave, and compliance. Both employers and employees must remain aware of these requirements to avoid potential legal complications.

Pros and Cons Summary

Pros:

• Fast-tracked immigration process for highly skilled workers.
• Simplified procedures for Recognised Sponsors.
• Clear salary requirements ensure fair compensation.
• Certain types of leave (maternity, paternity, and care leave) do not impact residency status.

Cons:

• Strict salary compliance, monitored closely by the IND.
• Sick leave creates a legal conflict between labor and immigration laws.
• Employers must invest in compliance management to avoid penalties.
• Non-compliance can lead to residence permit revocation and legal residency gaps.

Navigating the HSM scheme requires careful attention to both labor and immigration regulations. By staying informed and proactive, highly skilled migrants and their employers can successfully maintain their residency and employment in the Netherlands.

 

[mike1985]

I’ve got a buddy who lost his HSM status just 'cause he went on sick leave and his salary dipped. This seems like a major loophole in the system. Why isn’t sick leave protected the same way maternity or paternity leave is?

 

[jason51]

I’ve got a buddy who lost his HSM status just 'cause he went on sick leave and his salary dipped. This seems like a major loophole in the system. Why isn’t sick leave protected the same way maternity or paternity leave is?

That’s actually a documented inconsistency between Dutch labor law and immigration rules. The 70% salary requirement for sick leave complies with labor regulations, but immigration law doesn’t recognize it as an exception. IND still expects the full HSM threshold unless it’s statutory leave under WAZO. There’s been pushback from legal experts, but no reform yet.

 

[jennifer.javier]

So if someone is sick long-term and getting paid 70%, are they supposed to just... leave the country? Or can the employer top up the salary temporarily to help maintain the threshold?

 

[steven.harrington]

So if someone is sick long-term and getting paid 70%, are they supposed to just... leave the country? Or can the employer top up the salary temporarily to help maintain the threshold?

In practice, yes—employers often do step in and top up the salary to keep the HSM compliant. It’s not mandatory under labor law, but many employers take that route to avoid the risk of losing talent. It's a cost they bear to retain the employee and avoid IND trouble.

 

[cmarchan]

i Thnk is wAck tht u get penalizEd foR BEin sick like whaT if somonez got canSer or smthin ??? NO HeARt in thESE rules maaan