[At-Large] New Brazilian Immigration Law (No. 13,445/2017)
vanda at scartezini.org
Fri Sep 15 17:58:08 UTC 2017
If anyone interested or know someone interested, here the new Brazilian Immigration Law
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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
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Lídia Alves Lage
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