I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Brazil is a country with a population of approximately 211 million.2 Immigration has been essential for the development of Brazil and it is still considered a key factor for the future of the country.
Recognising the importance of immigration, the New Migration Law3 was approved in 2017, with new policies aimed at making the process of coming to Brazil easier and faster for foreign nationals. New procedures have been introduced to expedite and facilitate the granting of certain work visas and also to grant immediate residence status both where families were being reunited and under the Mercosur Agreement.
The fact that immigration into countries such as the United Kingdom and the United States is restricted represents an opportunity for Brazil, which, because of its current rules, not only allows, but also, in fact, encourages foreign nationals to study and work in the country.
While other countries around the globe are restricting the entrance of refugees, Brazil's New Migration Law and its implementing decree, Decree No. 9,199, are primarily focused on the importance of humanitarian rights for foreign nationals and allowing refugees to travel to Brazil and apply for resident status while in the country.
i Legislation and policy4
On 4 August 2016, Brazil joined the Hague Apostille Convention5 to expedite and simplify the legalisation of documents between Convention Member States.
On 21 November 2017, the New Migration Law and Decree No. 9,199 entered into effect, establishing rules for the entry and residence of immigrants in Brazil.
Under the New Migration Law, it is possible for someone in Brazil with irregular immigration status to apply for a residence permit if, for example, the individual has a job offer. This represents an option for immigrants to regularise their immigration status, even though no amnesty was contemplated in the law, provided that they pay the fine for an irregular stay – 100 reais per day, up to a maximum of 10,000 reais.
In addition, under the New Migration Law there is no 'permanent visa': the options are either a temporary visa, issued for a certain period (which varies depending on the type of visa), or a residence permit, for either a definite or an indefinite term, depending on the basis on which it is granted. The residence permit ceases once the establishing conditions no longer exist.
Another relevant change is that foreign nationals with a university degree will be able to apply for a work visa, irrespective of whether a company sponsors the visa. The rules governing this option have still to be published in a specific normative resolution.
In addition, the new legislation introduced the category of visitor visas, which could be issued electronically for nationals of some countries.
On 16 March 2019, Decree No. 9,731 was published in the Official Gazette, exempting Australian, Canadian, Japanese and US citizens from having to apply for a visitor's visa to travel to Brazil. (Note, however, that Decree No. 9,731 only entered into effect as of 17 June 2019.) Since then, Australian, Canadian, Japanese and US citizens became visa-exempt for tourism and business purposes, and for certain work activities, including consulting, auditing, offshore work and artistic and sports activities. Upon arrival in Brazil, they can be granted a maximum stay of 90 days in a single trip but are limited to a maximum stay of 180 days per migration year (i.e., a one-year period counted from the date of first entry). For activities of a work nature, the term of the stay cannot be more than 90 days.
In view of the Brazilian authorities' concern for human rights, there are two categories of visas that can be obtained for humanitarian and health purposes (visas were already granted for those reasons, but they are now distinct visa categories specified by law).
The National Immigration Council (CNIg) continues in the same role under the New Migration Law. To date, the former Ministry of Labour and the Ministry of Justice have issued a number of normative resolutions and inter-ministerial ordinances in relation to work visas and residence permits and these are listed below.
Moreover, because of the covid-19 global pandemic, as of 17 March 2020, Brazil began closing its borders, on a temporary and exceptional basis, and at the time of writing it is estimated that they will remain closed at least until the end of May 2020. However, the entrance restrictions do not apply to Brazilian citizens (born or naturalised) and, with the exception of individuals coming from Venezuela by land, the following foreign nationals are also exempt from these extraordinary measures:
- immigrants with a definite residence authorisation for the Brazilian territory, for a fixed or indefinite term;
- foreign professionals on assignment in the service of an international organisation, provided they are duly identified;
- foreign individuals accredited by the Brazilian government; and
- foreign nationals:
- who are the spouse, partner, child, parent or guardian of a Brazilian citizen;
- whose entry is specifically authorised by the government in the public interest; and
- who hold a National Migration Registry Card (CRNM).
Normative resolutions issued by the CNIg
The following resolutions were issued by the CNIg:
- No. 1/17 of 1 December, as amended by No. 31/18 of 12 June and No. 37/19 of 28 August – general procedures for work permit applications;
- No. 2/17 of 1 December – temporary visas and residence permits for work purposes with employment contracts in Brazil;
- No. 3/17 of 1 December, as amended by No. 33/18 of 12 June – temporary visas and residence permits for work purposes without an employment relationship in Brazil, for the rendering of technical assistance services;
- No. 4/17 of 1 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil, for transfer of technology;
- No. 5/17 of 1 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil for a seaman who works on board a cruise ship navigating the Brazilian coast;
- No. 6/17 of 1 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil to act as a seaman on board a foreign-flag vessel or platform;
- No. 7/17 of 1 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil to provide services or technical assistance to the Brazilian government;
- No. 8/17 of 1 December, as amended by No. 29/18 of 12 June – temporary visas and residence permits for work purposes without an employment relationship in Brazil under an international cooperation agreement;
- No. 9/17 of 1 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil, to represent, in Brazil, a financial institution or similar institution based abroad;
- No. 10/17 of 1 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil, to represent a non-profit private legal entity;
- No. 11/17 of 1 December – temporary visas, concomitant authorisations and residence permits for administrators, managers, officers or executives with management powers, to represent a civil or commercial society, group or economic conglomerate or legal entity, as well as concomitant authorisations for members of the board of directors;
- No. 12/17 of 1 December – temporary visas and residence permits for the exercise of a position, function or assignment, without an employment relationship, for an indefinite term, because specific federal legislation requires residence in Brazil;
- No. 13/17 of 12 December – temporary visas and residence permits for individual foreign investors;
- No. 14/17 of 12 December, as amended by No. 28/18 of 10 April, No. 30/18 of 12 June and No. 32/18 of 14 August – temporary visas and residence permits for religious activities;
- No. 15/17 of 12 December, as amended by No. 28/18 of 10 April – temporary visas and residence permits for the provision of voluntary services to a non-profit public or private entity or an organisation linked with a foreign government;
- No. 16/17 of 12 December – temporary visas and residence permits for performing artistic or sports activities, with a fixed-term contract, without an employment relationship with an individual or legal entity based in Brazil;
- No. 17/17 of 12 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil, to perform an activity as a correspondent for a foreign newspaper, magazine, radio, television or news agency;
- No. 18/17 of 12 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil, for an immigrant linked to an economic group whose headquarters are in Brazil, with a view to training and assimilating the business culture and management methodology of the company concerned;
- No. 19/17 of 12 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil, to receive professional training from a Brazilian subsidiary, branch or headquarters;
- No. 20/17 of 12 December, as amended by No. 27/18 of 10 April and No. 33/18 of 12 June – temporary visas and residence permits for research, teaching or academic extension for a scientist, researcher or teacher, and for foreign professionals who intend to come to the country, with a term of stay of more than 90 days;
- No. 21/17 of 12 December – temporary visas and residence permits for work purposes with an employment contract in Brazil for a professional athlete, as defined by law;
- No. 22/17 of 12 December – temporary visas and residence permits for work purposes without an employment relationship in Brazil to act as a seaman on board a foreign fishing vessel leased by a Brazilian company;
- No. 23/17 of 12 December, as amended by No. 38/18 of 28 August – special cases for the granting of residence permits related to labour-related issues for assessment by the National Council of Immigration;
- No. 24/18 of 20 February – temporary visas and residence permits for research, teaching or academic extension with an employment contract in Brazil;
- No. 25/18 of 20 February – temporary visas and residence permits for minors between the ages of 14 and 18 for performing sports activities;
- No. 26/18 of 20 February, in effect as of April 2 – temporary visas and residence permits for work purposes for professional internships or professional exchange programmes;
- No. 30/18 of 12 June, in effect as of July 25 , as amended by No. 41/19 of 2 October – renewal of the term of residence permits or the change to an indefinite term;
- No. 35/18 of 14 August, in effect as of 26 October – temporary visas and residence permits for work purposes without an employment relationship in Brazil, for receiving training in the handling, operation and maintenance of machines, equipment and other goods manufactured in Brazil;
- No. 36/18 of 9 October, in effect as of November 21 – temporary visas and residence permits based on real estate investments in Brazil.
- No. 39/19 of 28 August, in effect as of October 3 – revoking normative resolutions issued under the former Foreigners Statute; and
- No. 40/19 of 2 October, in effect as of November 27 – temporary visas and residence permits based on retirement or pension benefits because of death.
Inter-ministerial ordinances issued by the Ministry of Justice and Public Security
The following ordinances were issued by the Ministry of Justice and Public Security or jointly with other Ministries:
- No. 3 of 27 February 2018 – procedure to be followed in relation to the processing of applications for residence permits, registration and issuance of the CRNM, specifying the documentation necessary for examining applications and defining the procedures for registering residence permits granted to refugees, stateless persons and asylum seekers;
- No. 5 of 27 February 2018, as amended by No. 16/18, of 3 October – procedure for recognising the status of being stateless and the resulting facilitated naturalisation;
- No. 217 of 27 February 2018 – administrative proceedings relating to requests for extradition and precautionary arrest within the Ministry of Justice;
- No. 218 of 27 February 2018 – procedure for assessing the condition of economic hardship for the purposes of exemption from fees for obtaining documents for regularisation of immigration status of immigrants and for payment of fines;
- No. 6 of 12 March 2018 – procedure for the loss and cancellation of a residence permit;
- No. 7 of 13 March 2018 – temporary visa and residence permit for study purposes;
- No. 8 of 13 March 2018 – temporary visa and residence permit for medical treatment;
- No. 9 of 13 March 2018, as amended by No. 15/18, of 14 March – residence permit for immigrants in the Brazilian territory who are nationals of a border state in which the Mercosur Residence Agreement is not in force;
- No. 10 of 6 April 2018, amended by No. 17 of 19 November 2018 – procedures for temporary visa and residence permit granted for humanitarian reasons to nationals of any stateless people resident in Haiti;
- No. 11 of 3 May 2018 – procedures for requests for naturalisation, equal rights, loss, reacquisition of Brazilian citizenship and revocation of the decision of loss of Brazilian citizenship;
- No. 12 of 13 June 2018 – procedures for temporary visas and residence permits for family reunion;
- No. 85 of 18 June 2018, amended by No. 193, of 24 September 2018 – procedures for issuance of labour card and social security for immigrants;
- No. 8,166-DG/PF, of 21 March 2018 – delegates competence in the procedures for loss and cancellation of residence permit in the processes of which the Federal Police is in charge;
- No. 8,728-DG/PF, of 21 August 2018 – institutes the National Migration Registration Card and the Provisional Document for National Migration Registry;
- No. 197/2019 of 6 March 2019 – procedures for processing residence permit applications, registration and issuance of the National Migration Registry Card for a child or adolescent who is a national of another country or stateless, unaccompanied or separated, who is found at a point of migration control on the Brazilian borders or in the national territory;
- No. 3 of 3 July 2019 – procedure to be adopted in relation to the processing of applications to change a diplomatic or official visa into a residence permit;
- No. 4 of 26 July 2019 – procedures for granting residence permits for Cuban nationals who were part of Brazil's 'More Doctors' programme,6 to meet the interests of national migration policies;
- No. 5 of 26 July 2019 – granting residence permits to nationals of the Dominican Republic who have an ongoing process for recognition of refugee status in Brazil;
- No. 8 of 8 October 2019 – procedures to be adopted in relation to the processing of requests for special naturalisation;
- No. 9 of 8 October 2019 – procedures for granting temporary visas and related residence permits, for the purpose of humanitarian reception, to persons affected by the armed conflict in the Syrian Arab Republic;
- Ordinance No. 770/2019 of 11 October 2019 – provides for the impediment of entry, repatriation and deportation of a dangerous person or of one who has practised an act contrary to the principles and objectives set out in the federal Constitution;
- Ordinance No. 827/2019 of 19 November 2019 – procedures for completing the form for payment of government fees in relation to applications for a residence permit for work and investment purposes;
- No. 10 of 5 December 2019 – procedures for granting residence permits to nationals of the Republic of Senegal who have an ongoing process for recognition of refugee status in Brazil;
- No. 12 of 20 December 2019 – granting of temporary visas and residence permits, for the purpose of humanitarian reception, to Haitian citizens and stateless persons residing in the Republic of Haiti;
- Ordinance No. 11,264/2020 of January 24, 2020 – institutes new models for the CRNM and the Provisional Document for National Migration Registry;
- Ordinance No. 1 of 25 March 2020 – because of the covid-19 pandemic, provides for the suspension of procedural deadlines in administrative processes within the competence of the Immigration Division (DEMIG),7 which is part of the Ministry of Justice and Public Security;
- Ordinance No. 2 of 20 March 2020 – because of the covid-19 pandemic, provides for the suspension of face-to-face assistance, procedural deadlines and meetings of the National Committee for Refugees;
- Ordinance No. 132 of 22 March 2020 – because of the covid-19 pandemic, provides for an exceptional and temporary restriction of 30 days on foreign nationals entering Brazilian territory by land from Uruguay;
- Ordinance No. 147 of 26 March 2020 – because of the covid-19 pandemic, provides for an exceptional and temporary restriction of 30 days on foreign nationals entering the country by water transportation;
- Ordinance No. 152 of 27 March 2020 – because of the covid-19 pandemic, provides for an exceptional and temporary restriction of 30 days on foreign nationals entering the country by air transportation;
- Ordinance No. 158 of 31 March 2020 – because of the covid-19 pandemic, provides for an exceptional and temporary restriction of 30 days on foreign nationals entering Brazilian territory by land from Venezuela;
- Ordinance No. 8 of 2 April 2020 – because of the covid-19 pandemic, provides for an exceptional and temporary restriction of 30 days on foreign nationals entering Brazilian territory by land from Argentina, Bolivia, Colombia, French Guiana, Guyana, Paraguay, Peru and Suriname, and extends the deadline for the temporary restriction on foreign nationals entering Brazilian territory by land from Uruguay.
- Ordinance No. 203 of 28 April 2020 – because of the covid-19 pandemic, provides for the exceptional and temporary restriction on foreign nationals entering the country by air transportation to be renewed for an additional 30 days; and
- Ordinance No. 204 of 28 April 2020 – because of the covid-19 pandemic, provides for the exceptional and temporary restriction on foreign nationals entering the country by land to be renewed for an additional 30 days, in accordance with the recommendation by the Brazilian Health Regulatory Agency, Anvisa.
ii The immigration authorities
The new administration elected in January 2019 abolished the Ministry of Labour and Employment, formerly the government body overseeing the immigration processes and procedures for foreign nationals to work, study and reside in Brazil through the CNIg and the General Coordination of Labour Immigration (CGIL). Provisional Measure No. 870 and Decree No. 9,662, both issued on 1 January 2019, established DEMIG as the body structured to regulate and assess the immigration processes and procedures for foreign nationals to work, study and reside in Brazil, which are conducted through the CNIg and the CGIL.
Ministry of Justice and Public Security
The Ministry of Justice and Public Security is the government body that regulates nationality, immigration and other issues related to foreign nationals in general. DEMIG regulates and assesses the immigration processes and procedures for foreign nationals to work, study and reside in Brazil, which are conducted through the CNIg and the CGIL.
The CGIL is responsible for the assessment and granting of requests for advance residence authorisations for the issuance of temporary visas, and for residence permits for foreign nationals coming to work in Brazil or for training and internship purposes. Applications for residency permits for employment purposes are addressed to the CGIL and submitted by the interested party through the Immigration Management and Control System.
Applications for residency permits based on Normative Resolution No. 23 of 12 December 2017 are addressed to the CNIg and regulated under the terms of Article 162 of Decree No. 9199 of 20 November 2017. Further, a request for a residency permit based on the CNIg and the National Committee for Refugees (CONARE) Joint Resolution No. 01 of 9 October 2018 must be submitted by means of a protocol in any Federal Police unit or to the Ministry of Justice and Public Security, and duly instructed with the required documents.
The CNIg is composed of appointed representatives from the Ministries of Economy, Justice and Public Security, Foreign Affairs, Agriculture, Science and Technology, Development, Industry and Foreign Trade, Health and Education, as well as representatives of companies and trade unions. It is also responsible for:
- formulating immigration policies and coordinating and directing immigration actions;
- regularly assessing the need for qualified foreign workers in relation to granting entry;
- undertaking research on immigration-related problems;
- issuing rules for immigrant selection aimed at providing specialist workers for the various sectors of the economy;
- collecting resources for specific sectors;
- clarifying and resolving undefined areas in immigration-related cases;
- providing opinions on changes to immigration law proposed by any sector of the executive branch; and
- creating internal control regulations, subject to the approval of the Minister of Justice and Public Security.
National Justice Secretariat
The main duties of the National Justice Secretariat are to coordinate, in partnership with other administrative bodies:
- national migration policy, particularly in relation to nationality, citizenship, the judicial regime and migration;
- national refugee policy; and
- national policy on combating human trafficking.
The Federal Police
This division authorises the entry of foreign citizens at the port of entry into Brazil and extensions of stay while in Brazil.
Federal Police agents have discretionary power to allow the entry of foreign nationals into the country irrespective of whether they hold appropriate visas. Registration with the Federal Police and entry on the CRNM system for those who carry temporary visas is mandatory within 90 days of the date of arrival, and this must be done within 30 days of the date of publication of the granting of the residence permit by those who have their residence permit granted in Brazil. In some Brazilian states, failure to register within this period will preclude foreign nationals from re-entering the country and a new visa-request process would be required. Visitor visas are exempt from this rule. In the event of failure to register within the required deadline, the foreign national will be subject to a fine in the amount of 100 reais (for those entering Brazil) or a daily fine of 100 reais (for those who have their residence permit granted in Brazil).
CONARE is the collective body that brings together representative segments of the public sector, civil society and the United Nations, with the aim of examining applications for recognition of refugee status; deciding on terminations of refugee status, ex officio or at the request of the competent authorities; issuing declarations of loss of refugee status; guiding and coordinating the actions needed for effective protection, assistance, local integration and legal support for refugees, with the participation of ministries and institutions within CONARE; and of approving normative instructions that enable the implementation of refugee-related legislation.
DEMIG is a division of the Ministry of Justice and Public Security and is responsible for instructing, analysing, deciding and forwarding processes and matters related to nationality, naturalisation, recognition of refugee status, statelessness, residence permits, smuggling of migrants, expulsion of foreigners and the legal regime for immigrants. DEMIG also formulates and supports the implementation of public actions and policies to promote the social and labour integration and rights of migrants and refugees in Brazil.
Ministry of Foreign Affairs
The Ministry of Foreign Affairs is the body responsible for foreign policy and Brazilian international relations at the bilateral, regional and multilateral levels. It advises the President on the formulation of Brazilian foreign policy and implementation of diplomatic relations with foreign states and international organisations. Brazil has more than 220 representative institutions abroad, including embassies, consulates general, consulates, vice consulates, diplomatic missions or delegations, and offices. The Ministry of Foreign Affairs, through its embassies and consulates, is responsible for the issuance of visas to foreign nationals coming to Brazil.
iii Exemptions and favoured industries
In Brazil, there are no specific legal or favoured industries for immigration purposes. It is, however, mandatory, depending on the type of visa, to respect the two-thirds rule (at least two employees out of every three must be Brazilian),8 or have the candidates transfer technology or know-how, or train Brazilian-registered employees, so all industries that comply with these requirements may be seen as favoured industries: the more foreign manpower that can come to Brazil to transfer know-how and train the Brazilian labour force, the better.
II INTERNATIONAL TREATY OBLIGATIONS
Decree No. 6,975 of 7 October 2009 regulates the Agreement on Residency for Nationals of the States who are a party to the Mercosur Agreement.
The Mercosur Agreement applies to citizens of Mercosur signatory (Argentina, Brazil, Paraguay and Uruguay) and associated countries (Bolivia, Chile, Colombia, Ecuador and Peru).
On the basis of the Mercosur Agreement, nationals of these countries may apply for temporary residence in any of the other member countries, and are entitled to work under the same conditions as a national; after two years they may apply to change their temporary residence status to one of an indefinite term.
The application for temporary residence can be made either abroad or in Brazil, even if the candidate is in Brazil in an irregular situation, in which case he or she does not have to pay a fine and is not subject to any other administrative sanctions.
ii Schengen Agreement
Decree No. 7,821 of 5 October 2012 promulgated the Agreement between the Federative Republic of Brazil and the European Union on Short-Term Visa Waiver for Common Passports, signed in Brussels on 8 November 2010, and is applicable to individuals travelling for tourism or business purposes.
III THE YEAR IN REVIEW
Brazil, like the rest of the world, is in the middle of a very serious crisis due to the covid-19 pandemic. President Jair Bolsonaro has been struggling to balance containing the pandemic with mitigating the economic crisis that will affect the country. Many stores and all types of establishments have been closed and both entrepreneurs and casual workers are facing difficulties and concerns on how to financially support themselves.
With the exceptions listed below, Brazil has closed its borders to all foreign nationals while the region struggles to control the covid-19 pandemic.
Except for individuals coming from Venezuela by land, and irrespective of the type of transportation (by air, land or water), foreign nationals that meet the exceptional criteria listed in Section I are also exempt from the extraordinary temporary restrictions imposed by the government.
In respect of land transportation, there are some further specific exceptions:
- for foreign nationals from Venezuela, in the event of carrying out cross-border humanitarian actions previously authorised by the local health authorities;
- for foreign nationals from Uruguay, in the event of traffic by border residents, upon presentation of a border resident document or other supporting document; and
- for other countries, theoretically, in the event of traffic of residents of twin cities with an exclusively land-based border line.
In respect of water transportation, disembarkation may be authorised exceptionally if medical assistance is required, or to allow a foreign national to take a connecting flight to the applicable country of origin.
In the case of air transportation, access by passengers in international transit is also permitted, as long as they do not leave the international area of the airport and the destination country permits their admission.
The recovery that had been expected in the oil and gas sector in the coming years is now uncertain because of the covid-19 pandemic.
Given the scale of the pandemic crisis, it is impossible to anticipate when Brazil will get back on track.
IV EMPLOYER SPONSORSHIP
i Advance residence authorisations and residence permits
Except in the case of a visitor's visa, for all work-related visas it is necessary to obtain an advance residence authorisation from the CGIL in Brazil; residence permit applications are also assessed directly by the CGIL, now under the purview of the Ministry of Justice and Public Security.
The timescale for approval and publication in the Official Gazette of an advance residence authorisation for the issuance of a temporary visa or granting of a residence permit in Brazil is 30 calendar days. In the event of a refusal, it is possible to file an appeal.
After approval and publication of the advance residence authorisation for the temporary visa, the Ministry of Foreign Affairs sends, within approximately five business days, an authorisation for the consulate to process the visa application. The timescale for the granting of the visa varies, depending on the workload of the consulate, from three business days to two months. Upon arrival in Brazil, the visa holder has 90 days to register with the Federal Police.
The timescale for the processing of the 180-day visa is an exception, and the CGIL completes the assessment for this application within five business days or, in the case of emergencies, two business days, and the consulates are advised immediately of the approval of the advance residence authorisation.
In the case of those applying for a residency permit authorisation (i.e., those doing so while already in Brazil), upon approval and publication of the residence permit authorisation, the foreign national has 30 days from the date of publication to register with the Federal Police.
The CNIg normative resolutions (NRs) stipulate the requirements for the granting of advance residence authorisations for the issuance of temporary visas and for residence permits. The most common work visas and residence permits are as follows.
Officers' work visas and residence permits
Officers' work visas and residence permits9 are appropriate for foreign administrators, managers, officers, directors and executives with managerial powers who come to Brazil as representatives of companies, commercial groups or economic conglomerates.
The company that intends to appoint a foreign national to a managerial position must prove (1) an investment equal to or higher than the equivalent, in foreign currency, of 600,000 reais for each appointed foreign manager, or (2) an investment equal to or higher than the equivalent, in foreign currency, of 150,000 reais, for each appointed foreign manager, and generate a minimum of 10 new jobs during the first two years after the establishment of the firm or the arrival of the foreign national.
Although the residence permit is for an indefinite term, the migrant's CRNM will be valid for up to nine years. However, at the moment the Federal Police is still issuing CRNMs with an initial validity of five years, even though they should be for nine years, and it is only issuing them for nine years upon renewal. Migrants will only be able to renew the identity card if they continue to exercise the function in the designated company for which the visa or residence permit was approved.
Work visas and residence permits based on employment contracts
Under NR No. 2/17, Brazilian companies may require an advance residence authorisation for the issuance of a temporary visa or a residence permit under an employment contract if two-thirds of the employees of the Brazilian company are Brazilian citizens and that two-thirds of the total of the company's payroll is paid to Brazilian employees.
For purposes of this two-thirds rule,10 foreign nationals who have been living in Brazil for 10 years or more and are married to Brazilian citizens or have Brazilian children, Portuguese citizens, irrespective of any other individual situation, and nationals of the Mercosur countries who live in Brazil with residence granted under the Agreement, are treated as Brazilians.
Foreign nationals applying for residence must prove that they have education, qualification and professional experience compatible with the role to be exercised in Brazil. Education and qualification are proven by means of diplomas or certificates, and for people who do not have a college or technical diploma, a minimum of 12 years' study must be proven. In the case of candidates whose artistic or cultural activities do not depend on formal education, a minimum experience of three years in the exercise of the profession must be proven. The documents must be apostilled at the jurisdiction in which the documents were issued and translated in Brazil by a sworn public translator.
Professional experience is proven by means of a statement from the company for which the candidate worked, showing a minimum experience of four years for medium-level candidates, three years for technical-level education, two years for candidates who hold a bachelor's degree and one year for candidates who have attended postgraduate courses with a minimum of 360 class hours. Holders of a master's or PhD degree do not need to submit letters of experience.
If the Brazilian sponsoring company belongs to the same economic group of the current employer of the candidate, then a letter of experience may be prepared in Brazil and signed by an officer of the Brazilian company. In this case, the letter should be prepared in Portuguese, and there will be no need for further notarisation or legalisation.
If the individual has not been working for the same economic group for the required minimum period, a letter from previous employers will also be required, as well as a minimum of five years' experience.
The foreign national will be an employee of the Brazilian company and have the option of earning his or her total remuneration in Brazil or part in Brazil and part abroad (split payroll). The employment contract will be governed by Brazilian labour law and the foreign national will have all the benefits provided by the Brazilian labour legislation, such as a Christmas bonus, 30-day annual holiday, one-third holiday bonus, guaranteed severance fund and social security. During the first two years, the employment contract must be for a definite period. Should the Brazilian company want to extend the contract beyond a two-year period, the new employment contract must be for an indefinite term.
The visa will be valid for up to two years (either for one year and then renewed, or two years from the beginning), and at the end of the second year it can be changed into a residence permit for an indefinite term.
In considering the visa extension or change-of-status request, the following aspects will be taken into consideration: the need for continuous services to be rendered by the foreign national, respecting the interests of the Brazilian workers; compliance with any conditions that may have been established at the moment the initial work permit was granted; and the development of the workforce – both Brazilian and foreign employees – from the moment when the original work permit was granted to the moment when the extension is being requested. In the case of a change of status, a justification presented by the foreign national about his or her intention to permanently settle in Brazil is also required.
Work visas and residence permits based on technical assistance agreements with no employment contract
Under NR No. 3/17, an advance residence authorisation for the issuance of a temporary visa or a residence permit may be granted for up to one year, renewable for another year, for technicians coming to work in Brazil under a technical assistance contract for foreign equipment, or a cooperation or convention agreement between a Brazilian company and a foreign company. Foreign nationals will remain as employees of the foreign company and cannot receive salaries from Brazilian companies. This visa or residence permit cannot be granted to foreign nationals who will hold functions in Brazil that are merely of an administrative, financial or managerial nature.
In matters of urgency and cases of emergency, for the short-term temporary visa valid for up to 180 days, it is also mandatory to apply to the CGIL in Brazil to obtain an advance residence authorisation, before the visa can be granted by the consulate abroad.
A copy of the document issued by the Brazilian federal revenue service agency in the case of the sale and purchase of foreign equipment, or of the contract between Brazilian and foreign companies for the rendering of services, must also be submitted. However, if the companies belong to the same economic group or if the visa being applied for is a short-term visa for up to 180 days, an extract of the contract will suffice.
Work visas and residence permits under a transfer-of-technology agreement with no employment contract
Under NR No. 4/17, an advance residence authorisation for the issuance of a temporary visa or a residence permit may be granted for up to one year, renewable for another year, for foreign individuals coming to work in Brazil under a technology transfer contract or a technology transfer cooperation or convention agreement between a Brazilian company and a foreign company. Foreign nationals will remain as employees of the foreign company and cannot receive salaries from Brazilian companies. This visa cannot be granted to foreign nationals who will hold functions in Brazil that are merely of an administrative, financial or managerial nature. As part of the work application documentation, an outline of the technology-transfer training programme must also be submitted, including:
- the professional qualifications of the foreign national;
- the scope of the training programme;
- the number of Brazilians who will be trained;
- the form of execution of the training programme;
- the place where the training will be given;
- the expected duration of the training programme; and
- the results expected from the training programme.
If the place of signature of the contract is not in Brazil, and the agreement is executed abroad, an apostilled or legalised copy, as the case may be, of the contract between the Brazilian companies and the foreign companies for the rendering of services must also be submitted. In the case of a cooperation agreement between companies belonging to the same economic group, a statement signed by an officer of the Brazilian company identifying the companies and explaining the existing link between the companies is also required.
ii Labour market regulation
The labour market is protected on the basis of legislation that stipulates that two out of any given three employees must be Brazilian, with this rule being applicable to both payroll and headcount.
iii Rights and duties of sponsored employees
In Brazil, the obligations placed on employees with sponsored status vary depending on the type of visa or residence permit applied for.
The normal rule is that a foreign national can only work for the employer sponsoring the visa, and only in the position or function for which the visa or residence permit was granted.
Student permits may be changed to a residence permit with a local employment contract in Brazil.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Investor and entrepreneur visas are now regarded as one type of visa or residence permit, which falls within the scope of NR No. 13/17. The prior residence authorisation for the issuance of the temporary visa and the residence permit can be granted to foreign nationals who want to come to Brazil to invest their own foreign capital in Brazil in productive activities or start-up companies.
Foreign nationals will need to prove the investment of a minimum amount of the equivalent, in foreign currency, of 500,000 reais.
In special situations, if the investment is lower than the equivalent of 500,000 reais but not less than 150,000 reais, the CGIL may render a decision granting the advance residence authorisation or residence permit to foreign nationals who can prove the social relevance of the projects concerned.
In the case of start-ups, the required capital is only the equivalent of 150,000 reais to 500,000 reais.
The residence authorisation or permit will be for an indefinite term. Note that the identity card issued to the immigrant by the Federal Police will be valid for nine years and will then have to be renewed. However, to maintain that authorisation, the individual is required to present evidence that he or she remains a foreign investor, that the business plan was complied with, and that the project generated the job positions for Brazilians that were indicated in the original process.
Furthermore, the New Migration Law provides that skilled migrants can apply directly for a temporary visa or a residence permit even if without a Brazilian sponsor. However, this provision has still to be regulated to be implemented by the Brazilian immigration authorities.
VI OUTLOOK AND CONCLUSIONS
Taking into account Brazil's current migration legislation, once the covid-19 crisis is over, Brazil should remain open and continue to embrace humanitarian immigration rights and family reunion for foreign immigrants. The country welcomes foreign nationals struggling in their home countries because of persecution on grounds of race, creed, nationality, social group and politics.
Once life returns to normal, it is expected that Brazil will continue to work on developing new sectors and industries and on making it easier for foreign nationals to travel to and work in the country. There is already a variety of industries and sectors such as renewable energy, oil and gas, information technology, healthcare, manufacturing, biotechnology and pharmaceuticals that can benefit from the transfer of technology and know-how of companies that have developed their business around the world.
In Brazil, the residency programme for investment in real estate presents an interesting and feasible prospect for investors. In this regard, Brazil remains committed to the 'golden visa' model, which it embraced in 2018, and it is hoped that foreign nationals will take up the opportunities to invest in property and work in the country presented by these changes.
As to being able to live in Brazil for a more indefinite term without the requirement to work for a specific company or employer, there is likely to be an increase in the number of filings for Brazilian citizenship by those nationalities that allow dual citizenship.
1 Maria Luisa Soter is a partner and Gabriela Lessa is a senior counsel at Veirano Advogados.
3 Law No. 13,445.
5 Convention of 5 October 1961, Abolishing the Requirement of Legalisation for Foreign Public Documents.
6 Programa Mais Médicos.
8 Article 354 of the Brazilian Labour Code.
9 Normative Resolution No. 11/17 of 1 December.
10 Article 354 of the Brazilian Labour Code.