The Rights and Responsibilities of Highly Skilled Migrants Under Dutch Law

In today’s highly competitive global labour market, the Netherlands, despite its size, faces a strong demand to attract and retain highly skilled workers. The Dutch Ministry of Economy and Immigration Authorities have long recognised the need to secure top international talent to maintain the country's position as a leading knowledge-based economy.

In 2024 alone, more than 21,000 “Knowledge and Talent” applications were filed with the Dutch immigration authorities, a significant portion of which were Highly Skilled Migrant (HSM) applications.

The Highly Skilled Migrant scheme, introduced on 1 October 2004, has become one of the most popular immigration routes to the Netherlands, valued for its business-friendly and expedited process.

To participate in the HSM scheme, an employer must hold a “Recognised Sponsor” status with Dutch immigration authorities (IND). There is an exception for Turkish nationals who can apply for the HSM scheme even if the employer is non-recognised as long as they meet the other requirements.

Once granted, this status allows an employer to hire international talent on HSM permits, with expedited processing for other permit types. However, it comes with specific requirements, including obligations for both the employer and employee.

Once an employee receives their HSM residence and work status, they must comply with several conditions, including:

• • • Remain registered with the Dutch municipality; Receive a set salary level monthly and deposited into their bank account;
    • Notifying the IND of any changes to their employment or personal status; and
    • Adhering to limits on how often and how long they can be outside the Netherlands.

Salary Requirements and IND Monitoring

A key component of a HSM application is the salary threshold. Both employers and employees must commit to a specific salary level to qualify for and maintain HSM status. This salary must be paid out monthly directly into the employee’s bank account. Any deviation from the salary threshold must be reported to the IND, as it may affect the holder’s residency and work rights. Since the implementation of the scheme, legislation has been amended to minimize the risk of misuse or circumvention. In 2011, amendments to the legislation were made to ensure better control of the salary thresholds. The IND now uses the government system “Suwinet” to verify that HSM permit holders meet the salary requirements.

Given the importance of salary compliance, the IND can revoke a residence permit if the salary falls below the threshold for any period. This can result in a residence gap, meaning the permit holder may lose the legal stay they’ve accumulated in the Netherlands, potentially affecting their eligibility for permanent residency or naturalisation in the future.

Common Challenges: (Un)Paid Leave and Sick Leave

One of the main challenges for employers is maintaining compliance with the salary threshold during periods of (un)paid leave or sick leave. Fragomen professionals regularly assist clients with questions about exceptions to the salary requirement and how to manage situations involving temporary absences, salary reductions or extended leave.

Exceptions to the Salary Threshold

There are specific circumstances under which a permit holder can temporarily fall below the salary threshold without jeopardising their residence status. According to the IND, statutory leave as defined by Dutch law (WAZO), including maternity, paternity, adoption, foster care and family care leave, does not affect the permit holder’s status, even if the leave is paid or unpaid.

However, unpaid leave established contractually, through collective employment agreements (CAO), or company policies—known as “special leave” or “bijzonder verlof”—does not qualify for this exception.

Additionally, if a highly skilled migrant permit holder exercises their right to strike (“stakingsrecht”), they are also permitted to temporarily fall below the salary threshold without affecting their residence permit.

To comply with these provisions, both the permit holder and the employer must:

• • • Notify the IND using the appropriate form within four weeks (28 days) of the leave or strike;
    • Provide proof of entitlement for statutory leave under WAZO, or show the necessity for care leave; and
    • Maintain clear and accurate records of all (un)paid leave and strikes.

Employers should document all (un)paid leave and strikes accurately in their records and maintain transparency with the IND.

Sick Leave

Sick leave presents a unique challenge. Under Dutch labour law, employers are required to pay at least 70% of an employee’s salary during sick leave for up to two years. However, there is no immigration law exception for sick leave. If an HSM permit holder’s salary drops below the threshold due to illness, their residence permit may be at risk.

This discrepancy creates a conflict between Dutch labour law and immigration law. Employers must navigate the requirement to pay 70% of the salary while ensuring compliance with immigration law’s salary threshold.

Fragomen professionals are monitoring for the IND to address this issue by incorporating sick leave into their policies on (un)paid leave to avoid unnecessary complications and legal disputes.

Need to Know More?

Are you an employer or a highly skilled migrant who has encountered a similar issue? Please contact the team at [email protected].

This blog was published on 21 January 2025, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.