What is changing?
On December 8, 2017, the Brazilian Federal Government published the first Normative Resolutions that start to regulate the granting of “residence authorization” for work situations under the functional competence of the Ministry of Labor. These Normative Resolutions are the first concrete instructions on the implementation of the new Migration Law #13.445, which was issued May 24th, 2017 and established new rules on migratory policy in Brazil, including the rights and duties of migrants and visitors in Brazil, the entry and stay of foreigners, and the rules for the protection of Brazilians abroad. This new law revoked Law #6.815 (from August 19th, 1980 and Law #818 (from September 18th, 1949).
Who will be affected?
- All clients planning to send an employee to Brazil, or who currently have a foreign employee working in Brazil
What to expect
At the time of this alert, the National Immigration Council has published 12 Normative Resolutions. This alert covers the rules for the most common situations our clients would encounter.
Normative Resolution 01/17:
General rules about the procedure involving the granting of “residence authorization” by the Ministry of Labor.
It will be necessary to submit a document that proves the parenthood of the applicant (except if the information is already contained in the travel document), as well as Criminal Records Certificates issued in the countries where the applicant has resided in the last five years. Both documents must be legalized for use in Brazil and translated into Portuguese (as applicable). (Previously, Criminal Records were required related to the last year only.)
Normative Resolution 02/17:
“Residence authorization” for those who plan to work in Brazil under a local labor agreement i.e. with employment relations in Brazil.
In order to prove the professional qualification and experience with the activity that the applicant will perform in Brazil, the following will be needed:
- For those who hold a Post-Graduation Diploma with at least 360 hours of duration: to prove one year of experience in the specialization area.
- For those who hold a College Degree Diploma: to prove two years of experience in the specialization area (in the past it was one year).
- For those whose position does not require technical or college level: to prove four years of experience in the specialization area (in the past it was two years); also, the minimum schooling in this case will be of 12 years (in the past it was 9 years).
- For those who hold a Technical Level Degree: three years of professional experience is required.
- For those whose compatibility of the professional profile and the job may be demonstrated by other means: five years of professional experience.
- Professionals who hold Masters, Doctorate or College Degree compatible with the activities that will be performed in Brazil are exempt from proving professional experience.
Normative Resolution 03/17:
“Residence authorization” for those who will render technical services assistance without labor agreement in Brazil i.e. with no employment relations.
- It is no longer required to prove professional experience, nor to submit a training plan.
- The residence term will be of up to one year.
- Since the former Normative Resolution #100 will be no longer effective, technical visas granted in the past for up to 90 days by a Consular Department directly will be analyzed by the Ministry of Labor. Afterwards, they will allow the visa holder to be stamped a 180-day residence term.
Normative Resolution 04/17:
“Residence authorization” aiming technology transfer to Brazil without local labor agreementi.e.with no employment relations.
- It is no longer required to prove professional experience. However, it is mandatory to submit a training plan.
- The residence term will be of up to one year.
Normative Resolution 11/17:
“Residence authorization” to perform managerial activities at civil or commercial companies (aimed to administrator, manager, director or executive with management powers, to represent a civil or commercial company, a group or a corporate group – legal entity).
- The foreign investment must be made by a foreign source settled in Brazil, with potential for job or income generation. (Amounts have not been altered and remain equal to the text of the former Normative Resolution #62/04.)
- The residence term will be undetermined.
- Performance of different activities at the company or at other companies of the same economic group should be authorized by the Ministry of Labor. The same applies to a businessman who started working for other company that does not belong to the same economic group.
There is also the provision of a new type of visa designated as “visitor visa” directed to foreigners who enter Brazil without the intention to become resident in the country. The visitor visa may be used for: tourism, business, transit, performance of artistic and sports activities. As a general rule, the visitor visa shall be issued for one year and will enable a stay in Brazil for ninety days extendable for ninety additional days based on reciprocity with other countries.
The Decree opened the possibility to grant a visitor visa for the performance of a) artistic and sport activities; b) audit and consulting activities; or c) to work as maritime. The visitor visa in these situations will only allow ninety days of stay and cannot be extended.
The visitor visa may be transformed (converted) into “residence authorization” or into diplomatic, official or courtesy visas at the Brazilian territory.
As a guideline, the Decree forbids that the holder of the visitor visa performs remunerated activities in Brazil.
The Decree foresees that the temporary visa may be granted for the performance of the following activities: studies, work, investment and family reunion, among others.
For corporate purposes, it is highlighted the existence of the following temporary visas: a) student visa; b) work visa; c) investor visa; and d) manager visa.
In relation to the work visa, specifically, it remains the traditional division: it may be granted to the worker with or without labor relationship in Brazil.
In parallel to the provisions about temporary visas, the Decree foresees the possibility to grant “residence authorization”. This is an administrative act that, once accomplished the legal requirements, may enable the regularization of foreign nationals directly in Brazil without involving a Brazilian Consulate abroad.
The Decree foresees that: a) the immigrant, the resident border and the visitor, upon requirement, may require “residence authorization” in the country; and b) the visitor visa may be transformed (converted) into “residence authorization”, in the Brazilian territory, provided that the visitant fulfill the legal requirements. This, in practice, will allow that those who are in Brazil for the performance of activities such as tourism or business require their “residence authorization” while they are in Brazil.
It also provides the possibility to grant “residence authorization” for an undetermined period to execute a job position, function or assignment when Brazilian legislation requires so.
This is an important innovation of the Immigration Law that is now regulated by the Decree, considering that it was only in exceptional situations or under international agreements that the regularization of foreign nationals was allowed in Brazil.
The “residence authorization” may be granted in the same cases as for temporary visas, i.e.: studies, work, investment and family reunion, among others.
The “residence authorization” must be requested by the company that is interested in the work of the foreign national and not by themselves.
The obligation of registration before the Federal Police was maintained. This is a formality by which the foreign national informs to the Federal Police that they will reside in Brazil and for which they will receive an identity card for foreigners, now called “National Migration Register Card” (CRNM), replacing the old designation of “National Registry of Foreigners “(RNE).
The timeframes for registration are as follows: a) 90 days for the holder of a temporary visa; b) 30 days for those who require a “residence authorization” and obtain its approval. In both cases, noncompliance with these deadlines will result in a fine, which now could be more severe.
What you need to do
- Be aware that all applications with the Ministry of Labor, the Ministry of Justice, and the Federal Police are on hold while details of the implementation of the new law are determined.
- Be aware that consular processes are also subject to change.
- Contact your Emigra Worldwide representative for further details on how these updates may impact you or your client.