Salary highly skilled migrant can be temporarily below salary threshold in case of statutory (care) leave or right to strike
One of the main requirements for a highly skilled migrant permit is that the salary is paid out and above the applicable salary threshold each month. When the salary is below this threshold for a month, the residence permit can be revoked. There are a number of exceptions to this rule.
When a highly skilled migrant makes use of parental, maternity, adoption and foster care leave or additional maternity leave, he or she may be allowed to receive a lower salary than the minimum that is applicable. The IND confirmed that this also applies when a highly skilled migrant wants to make use of short‐ or long‐term care leave, for example, to take care of a family member who is ill. These forms of leave are laid down in the Dutch law for work and care (Wet Arbeid en Zorg or WAZO). In addition, the IND confirmed that the salary of a highly skilled migrant can be temporarily below the threshold when he or she has made use of the right to strike, as also defined by law.
- When a highly skilled migrant is temporarily paid a salary that is below the applicable threshold due to one of the above mentioned types of leave or due to participation in a strike, it will have no consequences for the residence permit. However, there are the following conditions:
- The statutory paid or unpaid leave or the use of the right to strike and the consequences with regards to the salary decrease are reported tot he IND;
- The employer reports this online through the Business Portal or with the notification form for employment‐related residence purposes;
The notification must be received by the IND within 4 weeks of the start of the leave or strike.
- For leave based on the Dutch law for work and care (Wet Arbeid en Zorg or WAZO) there are the following additional conditions:
- The highly skilled migrant is entitled to statutory leave and meets the conditions for this leave as stipulated in WAZO;
The highly skilled migrant and/or the employer must be able to demonstrate that the highly skilled migrant is entitled to statutory paid or unpaid leave.
In case of care leave, the highly skilled migrant and/or employer must be able to demonstrate that the person who is ill needs care and that only the highly skilled migrant can take care of him or her.
It is important that the employer keeps the information on the leave or strike in the company’s administration with supporting documents which demonstrate that all requirments were met. The IND can ask for these records during an inspection.