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Immigration News - January 11, 2007

January 11, 2007

By Immigration Practice Group

* Netherlands – 2007 Salary Requirements for Knowledge Migrant Worker Applications
* Belgium – Changes in Work Permit Salary Requirements and Changes in Filing Work

Permit Applications in Brussels

* Bulgaria and Romania Join the European Union

Netherlands – 2007 Salary Requirements for Knowledge Migrant Worker Applications

In October 2004, the Dutch Immigration Department (IND) instituted a program aimed at attracting highly-skilled Knowledge Migrant workers (Kenniswerkers).  Dutch employers wishing to sponsor skilled foreign workers under this program must be registered with the IND Knowledge Migrant Program.

The (IND) recently announced new annual base salary requirements for non-European Economic Area foreign nationals applying as Knowledge Migrant workers.  The new salary requirements will apply to all Knowledge Migrant applications filed as of January 1, 2007, or for applications filed prior to January 1, 2007 if the employment agreement commenced January 1, 2007.
The new salary requirements are as follows:

·         Applicants under age 30 must have an offer of employment with an annual base salary of at least  €34,130;

·         Applicants age 30 and above must have an offer of employment with an annual base salary of at least €46,541.

The salary should be paid either via the Dutch payroll (if the assignee is a localized employee), or if the assignee is seconded to the Netherlands, his or her salary should be paid from the assignee’s home company payroll.  Paid holiday leave (e.g. 13 months’ pay) or a guaranteed bonus written into the employment agreement can be considered as part of an assignee’s annual base salary; however, car lease and housing allowances are not considered as part of the annual base salary.

If an assignee is localized to the Dutch payroll, a Dutch 30% income tax exemption, if granted, will not be taken into account when applying for first-time applicants.  Therefore, the amount of tax applied against the assignee’s salary will not be counted against the annual base salary for immigration purposes.
When applying for an extension, the decision of the Dutch Tax Service granting the income tax exemption may be taken into consideration.  Therefore, the Dutch Tax Service’s decision to grant the tax exemption must be submitted with copies of the assignee’s Dutch pay slips covering the last three months of employment in the Netherlands.

Belgium – Changes in Work Permit Salary Requirements and Changes in Filing Work Permit Applications in Brussels

Non-European Economic Area (EEA) foreign nationals applying for work authorization in Belgium typically will receive Type “B” work permits.  The Type “B” work permit is used for most intra-company transfers of key personnel and is connected to a single Belgian employer.  Belgian companies sponsoring Type “B” work permit applications are required to meet certain conditions regarding payment of the foreign national’s salary and social insurance withholdings.  The Belgian employer must file the work permit application with the regional employment service center (VDAB in Flanders or FOREM in Wallonia) having jurisdiction over the place of proposed employment.

As of December 4, 2006, work permit applications filed in the Brussels region will no longer be filed with the ORBEM/BDGA office (the regional employment service).  The work permit application process has been streamlined to allow applicants to file directly with the Brussels Regional Ministry-Department of Employment Policy and therefore bypass the additional step of filing with ORBEM/BDGA.  The VDAB and FOREM in Flanders and Wallonia, respectively, will continue to collect work permit applications filed in these regions.  Once the applications are accepted by these service centers, all work permit applications are forwarded to the Regional Ministry of Employment for final approval.

According to new regulations released by the Belgian Ministry of Employment and Labor, all Type “B” work permit applications and renewals filed on or after January 1, 2007 must meet the following salary requirements:

· Foreign workers employed at a senior management or executive level must evidence an annual base salary of at least €56,187;

· Highly skilled applicants must evidence an annual base salary of at least €33,677.

Foreign nationals with existing Type “B” work permits should be aware of these new changes to the annual base salary requirements and review these changes with their Belgian employers prior to filing work permit renewal applications.

Bulgaria and Romania Join the European Union

On January 1, 2007, Bulgaria and Romania were admitted as Member States of the European Union (EU), thereby enlarging the EU to a total of 27 Member States.  The last enlargement occurred on May 1, 2004, with the admission of 10 new countries (“accession” countries), which included most Eastern European countries, Malta and the Republic of Cyprus.  With the admission of Bulgaria and Romania, the EU Commission has indicated that further enlargement is unlikely for the foreseeable future.

The EU comprises the following countries:  Austria, Belgium, Bulgaria, Cyprus (Republic of), Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland (Republic of), Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom.

Under EU treaty, full admission of new member states is phased in over a period of several years in order to assimilate a newly-admitted country’s economy and population within the European community.  Each of the “pre-enlargement” countries (countries that comprised the EU prior to May 1, 2004) and the “accession” countries can determine whether to grant full freedom of movement to nationals of newly-joined Member States.  After 2011, all freedom of movement restrictions must be abolished.

At least nine Member States have decided to allow full freedom of movement to Bulgarian and Romanian nationals beginning January 1, 2007.  These countries are:  Czech Republic, Estonia, Finland, Latvia, Lithuania, Poland, Slovenia, Slovakia and Sweden.  Bulgarian and Romanian nationals will not be required to apply for work permits nor entry clearances prior to arrival in these countries.  However, Bulgarians and Romanians intending to remain in any of the aforementioned countries for more than 90 consecutive days must register their residences with the local migration authorities.

Denmark, France and Spain have agreed to grant a “partial” lifting of restrictions and/or consider more favorable adjudication of work authorization applications filed by Bulgarian and Romanian nationals.  Therefore, exemption from work authorization or having work permit applications expedited will be determined on a case-by-case basis by each country’s migration authorities.

Other EU countries have not yet determined to what degree they will open their labor markets and/or grant full freedom of movement.  Cyprus (the Republic of), Hungary, Ireland, Italy, Luxembourg, Malta and the Netherlands will announce their decisions at a later date.  Until such announcements are made, Bulgarian and Romanian nationals should check with the Embassy or consular post of these countries to determine the current work permit/residence requirements.

EU countries that have decided to restrict access to their labor markets and require work authorization are Austria, Germany, Greece, Portugal and the United Kingdom.  Until further notice, Bulgarian and Romanian nationals must apply for work authorization prior to commencing employment in these countries.  In addition, Iceland, Liechtenstein and Norway, which are not EU Member States but members of the European Economic Area (EEA), have also decided to impose these same restrictions.

Admittance of EU nationals in other EU Member States is at the discretion of the national government of each Member State.  Therefore, until 2011, any Member State may notify the EU Commission that it chooses to change or rescind freedom of movement or work authorization privileges at any time.  Therefore, prior to taking up work or residence, EU nationals should check the immigration requirements with the migration authorities in the host EU country.

Immigration News is published solely for the interests of friends and clients of Paul, Hastings, Janofsky & Walker LLP and should in no way be relied upon or construed as legal advice. For specific information on recent developments or particular factual situations, the opinion of legal counsel should be sought. Paul Hastings is a limited liability partnership. Copyright © 2006 Paul, Hastings, Janofsky & Walker LLP.