Re: [lac-discuss-en] New Brazilian Immigration Law (No. 13, 445/2017)
If anyone interested or know someone interested, here the new Brazilian
Immigration Law
All the best and welcome!
Vanda Scartezini
Polo Consultores Associados
Av. Paulista 1159, cj 1004
01311-200- Sao Paulo, SP, Brazil
Land Line: +55 11 3266.6253
Mobile: + 55 11 98181.1464
Sorry for any typos.
New Brazilian Immigration Law (No. 13,445/2017)
New Brazilian Immigration Law (No. 13,445/2017)
Simplified provisions for foreign investors and workers (Visa)
New legal situation as of November 2017
The current Brazilian Immigration Law, also known as “Estatuto do Estrangeiro”
(Law No. 6,815/80), which was put into force under the military dictatorship in
1980, has perceived immigration as a threat rather than an enrichment. Many
difficulties were imposed to foreign workers and investors, considering the
country’s concern about the protection of its internal labor and market force.
This law is strongly restrictive in the question of immigration, and thus
promoted a protectionist labor market policy which made the participation in
the Brazilian market by foreign labor and investors more difficult.
A new immigration law (Law No. 13,445/2017 – “New Law”) passed and will enter
in force as of November 22, 2017.
A modern migration law was created, being much more open to foreigners who
intend to work and do business in Brazil. A summary of some important changes
is made hereby, especially regarding the issuance of visas.
This move towards a welcoming environment of immigration also makes it easier
for foreign workers and investors to participate in the Brazilian economic
market.
Our Foreign Investment and Employment team is accompanying the implementation
of the New Law by Brazilian authorities closely. We will be happy to assist you
with any issue that arises.
The path for the New Law to come into force
In the coming weeks and months, administrative regulations will be drawn up by
the authorities. Prerequisites shall be laid down regarding the period of
validity, the permissible activities, the application requirements and the
renewal or extension for the new visa categories and the residence permit.
New rules are also expected to govern the situation of foreigners who entered
Brazilian territory under the current law.
In practice, detailed ruling of the New Law shall be produced by variety of
government agencies, under the auspices of the Ministry of Foreign Relations,
the Ministry of Justice and the Ministry of Labor.
Visa types and residence permit
The most noticeable changes are:
(i) Restructuring of the existing visa categories – there are 5 types of
visa under the New Law: visit visa, temporary visa, diplomat visa, official
visa and courtesy visa;
(ii) Institution of a residence permit (“Residence Permit”), to be granted
to all visa holders, except for holders of visit visas. Visit visa holders that
change the nature of their stay may also apply for a Residence Permit, which
shall then substitute the visit visa;
I. Visit Visa
Applicable for business travel, tourism, transit and other short-term
activities. Activities expressly included herein are business meetings,
conferences, seminars, lectures, sales talks and market surveys.
No paid activity may be exercised by the foreigner that holds a Visit Visa.
The conversion of the Visit Visa into a Residence Permit (while the foreigner
is inside the Brazilian territory) is expressly allowed.
Visa duration rules are set by additional provisions and must correspond to the
criterion of reciprocity with the country of origin of the foreigner (including
a visa waiver when applicable).
II. Temporary Visa
Unlike the former available specific work visa, a temporary visa applies to
virtually all employment-related types of immigration, whether under a domestic
or foreign employment contract.
Temporary visa granting conditions are, among others, activities of research,
teaching, further education or study, vacation work, investment or activities
with economic, social, scientific, technological or cultural relevance and -
family reunion.
Furthermore, a temporary visa will be granted to a foreigner that proves to
have agreed an employment contract with a legal person resident in Brazil, even
before this agreement starts. Foreigners with a university or equivalent degree
may even get a temporary visa without an employment contract agreed upon.
Furthermore, students, researchers, humanitarian, voluntary and religious
workers or patients for a medical treatment are also eligible for a temporary
visa.
III. Diplomatic, Official and Courtesy Visa
These visas are issued to foreign envoys and officials residing permanently or
temporarily in Brazil to represent another state or recognized international
body. These individuals must be remunerated by a foreign state or an
international organization and are not subject to Brazilian labor law.
Diplomatic and official visas can be extended to family members who are then
allowed to work. Family members working shall be subject to Brazilian
employment law, if reciprocity of such rights is granted to Brazilian nationals
in their country of origin.
A private employee who works for a holder of a diplomatic/official/courtesy
visa is also eligible for a courtesy visa himself and his employment
relationship will be subject to Brazilian labor law. The employer is fully
responsible for the departure of the foreigner from Brazil upon the end of the
employment.
Holders of a diplomatic or an official visa can convert this into a Residence
Permit, with the loss of all privileges and immunities that had been previously
granted.
IV. New Residence Permit / Two-stage system
The New Law allows the granting of a Residence Permit in Brazil to the holders
of temporary, diplomatic, official and courtesy visas. The Residence Permit is
applied for and granted while the foreigner is inside the Brazilian territory,
after having entered with an applicable visa.
Moreover, in case a foreigner under a visit visa changes the status of his stay
in Brazil, for example, he enters the territory as a tourist and receives a job
offer – the foreigner can apply for a Residence Permit without having to leave
the country.
This is the so-called two-stage system: 1. a corresponding visa is required, 2.
to apply for Residence Permit.
The residence permit may be refused to persons who have been convicted in
Brazil as well as abroad (this does not apply to minor criminal offenses).
Specific conditions and the procedure for granting a Residence Permit are
defined by additional, still to be published regulations.
Humanitarian and political changes
Finally, there are progressive aspects of the New Law in terms of foreigners'
rights, human rights and political rights, for example the decriminalization of
unauthorized immigration, protection of labor rights, access to social
security, free legal aid for the unemployed and the right of assembly and trade
union activities.
By Dr. Karin Klempp, LL.M. Franco, Lídia Alves Lage, Simone Grizzo Bösenberg,
Maxie Müllbacher
© Rothmann Sperling Padovan Duarte Advogados
Further Information?
Dr. Karin Klempp Franco, LL.M.
kklempp@xxxxxxxxxxxxxxx<mailto:kklempp@xxxxxxxxxxxxxxx>
Lídia Alves Lage
llage@xxxxxxxxxxxxxxx<mailto:llage@xxxxxxxxxxxxxxx>
Simone Grizzo Bösenberg
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