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New Brazilian Migration Statute

In less than a year, one law, one decree and 30 normative rulings have been issued on this matter

In late 2017, besides Law No. 13,467 (known as the Labor Overhaul), which is indeed a step forward in making Brazil more business-friendly, another major Brazilian law came into force: the new Migration Statute (Law No. 13,445).

It is valid to say that in 2017 not only the Labor Overhaul, but the new Migration Statute represent an important step to review and modernize local statutes that were clearly outdated.

This Statute, which became effective on November 21, 2017, brought about several changes intended to foster an actual integration of migrants (foreigners) and to facilitate the administrative procedures for their stay in Brazil.

The new Statute was heralded by human rights defense organization as a positive and innovative transformation into the Brazilian legal system and society in that the erstwhile law (dating back to a time when Brazil was governed by the military) saw immigrants as a threat to national security.

In its first articles, the new Statute provides for equal treatment and opportunities for foreigners and their family members, while also giving equal and unrestrained access to public services, goods and programs, welfare benefits, education, full legal aid, work, lodging, banking services and social security. The right to leave, stay and re-enter the Brazilian territory is also assured by the new Statute.

There was no definition of visa in the erstwhile law. For its part, Law No. 13,445 defines 'visa' as a document that gives its holder an expected right of entering the Brazilian territory. Further, five types of visa were regulated for an applicant who intends to enter or stay in the Brazilian territory: visit, temporary, diplomatic, official, and courtesy.

A visa will be required from those visiting Brazil for a short stay without residence purposes (depending on the country of origin), in case of tourism, business, transit, artistic activities, or other specific circumstances.

Temporary visas (as well as the residence permit, a long-stay visa) may also be granted for family reunion. The new Statute warrants this right to the spouse or common-law spouse, child, ascendant or descendant up to the second degree of the migrant, as well as to those acting as guardians or custodians of a Brazilian ward.

In this case, spouses of those holding specific types of visa are also allowed to work and have full rights during their stay in Brazil. Before the new law, the spouse and family members of the visa holder faced difficulties to work in Brazil, what was an ongoing source of criticism as because such limitation jeopardized the full integration of the foreigners' family in Brazil.

Since December 2017, the National Immigration Council (CNIG) has published 30 normative rulings (the most recent of which was released in July 2018), providing for the types of temporary visas and for residence permits in Brazil. Such rules comprise, among other matters: residence permits issued to senior managers and employees of local companies and to those engaging in research, teaching or academic extension activities under an employment or independent contractor regime in Brazil; temporary visas and residence permits issued to those engaging in religious activities; and residence permits issued to those individuals investing in a legal entity in Brazil.

These changes are a major breakthrough in the Brazilian migration rules, but they are still quite recent and, as such, it is still somewhat uncertain how they should be construed and applied.

It is worth noting that the new Statute poses no limits on the two-thirds rule on employment of Brazilians in a local company. The same goes for payroll (two-thirds of which must be allocated to Brazilian citizens). That being so, only one-third of a company's headcount may be composed of foreign employees.