New Immigration Law Takes Effect

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Executive Summary

A new law which went into effect on November 21, 2017 has overhauled the immigration system in Brazil. The law offers greater flexibility for visitors and temporary workers and restructures Brazil’s current visa categories.

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The situation

The new immigration law went into effect on November 21, 2017, replacing a stricter immigration law enacted in 1980 during Brazil’s military regime.

A closer look

Effective November 21, 2017, all new visa applications for Brazil must comply with the new immigration law.  The Decree that provides guidelines on the new law was released yesterday; it contains no significant changes from the draft of the Decree released for public comment on November 1, 2017.

Main changes:

• Visa types. The new law restructures Brazil’s visa categories into five specific visa types: visitor, temporary, diplomatic, official and courtesy visas.
  • Visitor Visa. Available for short-term visits, when a foreign national does not have intent to reside in Brazil, to carry out tourist, business, transit, artistic or sporting activities.
    • Business versus tourist visa. For the first time, Brazilian immigration law distinguishes between business and tourist activities, and auditing and consulting activities are now permitted in business visitor status. Previously, business activities were subject to a wide degree of discretion and interpretation.
    • Local salary and related rules. Visitor visa holders still cannot receive a local salary, but may now receive payments from the Brazilian entity to cover per diems, travel expenses, and prize money from artistic, cultural and sports competitions. Most of these payments were not covered in the previous immigration law.
    • Length of stay. Initial stays are granted for a maximum of 90 days, with most foreign nationals eligible to extend their stay for an additional 90 days.  Foreign nationals conducting the following activities cannot extend their initial stay beyond 90 days: auditing and consulting; maritime; artistic; and sports/athletics. The maximum cumulative stay for all foreign nationals in this category is 180 days in a 12-month period, counted from the date of the foreign national’s first entry to Brazil. 
    • Visa waiver countries. The Ministry of Foreign Affairs and Ministry of Labor are responsible for maintaining the list of nationalities that can enter Brazil without a visa and their corresponding length of stay.  The most recent list was issued on October 24, 2017, but a new list may be released at any time.
    • Prior valid tourist and business visas. Valid tourist and business visas issued prior to the implementation of the new law will allow the foreign national to remain and perform activities prescribed by the new law.
    • Online applications for visitor visas. An online system for tourist and business visitor visa applications was made available today to Australian nationals. Japanese nationals will be able to use this system on January 11, 2018; Canadian nationals on January 18, 2018; and U.S. citizens on January 25, 2018. Currently, Canadian, Japanese and U.S. nationals must file their visa applications through a Brazilian consulate. Currently, only these four nationalities are eligible to apply online.
  • Temporary Visa. The Temporary Visa is designed for workers and investors, among other categories of persons, to enter Brazil. Foreign nationals can apply for a temporary visa at a consulate outside of Brazil. All foreign nationals applying for residence authorization who are outside of Brazil will need to first apply for a Temporary Visa in order to enter Brazil and obtain their residence authorization.
  • Residence authorization. A foreign national outside of Brazil will need to obtain a Temporary Visa to enter Brazil and then register at the Federal Police within 90 days of entry in order to obtain residence authorization. A foreign national already in Brazil can apply for residence authorization at the Federal Police, Ministry of Justice, or Ministry of Labor, depending on the purpose of the foreign national’s stay. The foreign national must then register at the Federal Police within 30 days of the residence authorization being approved and published in the National Gazette.  
    • Validity. Most Residence subcategories are valid for up to two years and can be renewed for an additional two-year period or converted to permanent residence. Exceptions exist, including for the investor visa, where residence authorization can be granted for an indefinite duration.
  • Residence and temporary visa categories for workers.
    • RNE card renamed CRNM. The former RNE card, the long-term identity document issued after Federal Police registration, has been renamed the CRNM (“Carteira de Registro Nacional Migratório”).
    • Offer of employment. For both categories, foreign nationals must have an offer of employment by a Brazilian entity. There are exceptions for foreign nationals who hold a university degree in a profession considered “strategic to the country,” though this term remains undefined at this time.
    • Procedures, eligibility, and document requirements. Information on these requirements has not been released; Fragomen is monitoring the situation and will revert with updates.
    • Change of status. Foreign nationals who have entered Brazil in visitor status may now apply for Residence Authorization without having to leave the country, as was previously required. 
• Irregular status. Foreign nationals in Brazil without legal status (deemed “irregular”) can no longer be prevented from filing an in-country Residence Authorization.  
• Fines and penalties. Foreign nationals who violate immigration laws are subject to deportation and fines ranging from the equivalent of USD 35 to 3,500. Companies may be fined between USD 350 to 350,000, which is a significant increase from penalties under the old law.
• Transition period. Visa applications filed at the Ministry of Labor prior to November 21, 2017 will be adjudicated based on the former law, provided that the corresponding consular visa is obtained at the Brazilian Consulate abroad within 90 days of the Ministry of Labor approval of the application and publishing it in the Official Gazette.

 

Implications for employers and foreign nationals

Foreign nationals already in Brazil do not have to complete any additional requirements, provided they have valid work or residence status and have registered with the Federal Police under the previous law.  Renewal applications may be subject to different requirements; however, the specifics of any requirements will not be confirmed until the Normative Resolutions are released.

There is still uncertainty around details related to the new law given that the related resolutions have yet to be issued.  Brazil seems to be easing eligibility requirements and streamlining processes for all categories of foreign nationals.

Looking ahead

Foreign nationals and employers should be aware that government officials will likely take a cautious approach to adjudicating applications during the transition period as official legislation and system updates are still pending. Foreign nationals and employers should also be prepared for delays in processing of all immigration related applications in Brazil. Foreign nationals should expect significant delays with the Federal Police, the entity with which foreign nationals must register their visas within 90 days of entry.  Specifically, foreign nationals should expect to see the cancellation of some registration appointments, delaying the issuance of their CRNMs, and, as a result, preventing them from conducting local transactions such as obtaining a cell phone or opening a bank account.

Please consult your immigration provider for further information during this transitional period.

Fragomen in Brazil is Fragomen Brasil Serviços de Imigração Ltda., operating exclusively as an immigration consultancy and not as a law firm in Brazil.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen