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Comments on the New Brazilian Immigration Law No. 13,445/2017

On May 25th, 2017 Law No. 13,445/2017 was published in the Official Gazette of the Union. This law, also known as the New Brazilian Immigration Law, will enter into effect in November of 2017, and will replace the Foreigner’s Statues law (Law No. 6,815/1980).

The new law represents a change to the guiding principles of previously adopted Brazilian Immigration Policy. It has a humanitarian approach and aims to reduce the bureaucracy and fight the criminalization of immigration infractions and xenophobia.

Below is a summary of the main impacts on immigration status, and entry and work permits for foreign professionals in Brazil.

Visa Categories

Law No. 13,445/2017 changes the nomenclature of visa types and abolishes the Permanent Visa. Note Article 12: “The applicant who wishes to enter or remain in the national territory may be granted visas:  I - Visit; II - Temporary; III - Diplomat; IV - Official; V - Courtesy. "

Visiting Visas

These are visas for business, tourism, transit, and other short-term visas whose purpose is not linked to any remunerated activities in Brazil.

The deadlines will be defined by additional regulations and must follow the criteria of reciprocity with the country of origin, including the case of visa exemption for the same purpose of visit, with remunerated activities in Brazil being prohibited.

Temporary Visas

Article 14 defines temporary visas and their purposes. Aside from expanding the role of categories for a temporary visa, it also abolishes the Work Visa requirement for crew members of vessels on overseas travel and cruise ships.

The specific visa requirements will be defined in additional regulations; however, it is certain that they must follow Brazilian civil and labor legislation and respect the principles and guarantees of the Brazilian Federal Constitution.

Residence Permit

The new law creates a residence permit available to all foreigners in Brazil, despite their immigration status (or entry visa).  With the elimination of the Permanent Visa Provision and the creation of the residence permit, foreigners wishing to reside in Brazil on a permanent basis while on a temporary visa or visitor visa may apply for a residence permit by complying with the required conditions outlined in Article 30.

Generally speaking, it applies to those who desire to remain in Brazil for work, family reunion, research, teaching or academic extension, health treatment, humanitarian efforts, investment or relevant economic, social, scientific, technological or cultural activities, as well as other purposes and cases of persons who benefit from a treaty on residence and free movement regulations, such as Mercosur Nationals.

The requirements and procedure for granting a residence permit will be defined by additional regulations, as already mentioned.

Article 31 and its sections define these requirements:

1) Facilitate the granting of the residence permit within a timeline of 60 days, and reaching a decision on the residency permit requirements when the purpose is work, research, teaching or academic extension. Other cases will be dealt with in regulation.

2) The expectations for a new residency permit. It does not mention extension or conversion.

3) The possibility of requesting a new residence permit after its expiration and associated fines and fees.

4) Denial of a residence permit for those who have been criminally convicted in Brazil and/or abroad, as defined by Brazilian Penal Law, excluding minor offenses.

Registration and Civil Identification to Obtain Immigrant Identity

The National Register of Foreigners (RNE) will be renamed to National Migration Register (Article 117).

In the case of the Temporary Visa, foreigners must register within 90 (ninety) days of entering the (Article 109, III).

It is important to mention that in the case of a residency permit, foreigners must register within 30 (thirty) with the appropriate department which authorizes the residency (Article 109, IV).

Fines and deportation

1) Increase in the fine costs for an infraction committed by an individual, in the minimum amount ranging from R$100.00 (one hundred reais) to R$10,000.00 (ten thousand reais) per infraction. Currently the fine ranges from R$8.28 (eight reais and twenty-eight cents) to a maximum of eight-hundred and eight reais and twenty-eight cents (R $828.28).

2) Increase in the fine for infractions committed by legal entities, ranging from a minimum of R$1,000.00 (one thousand reais) to R$1,000,000.00 (one million reais) per infraction. Currently the fine is R$2,480.00 and can be multiplied up to 10 times per infraction.

3) The economic condition of the offender, recurrence, and the seriousness of the infraction in both cases above shall be taken into account upon charging a fine.

4) The fine attributed per day of delay or by excess of permanence may be converted into an equivalent reduction of the authorization of the visitor visa period, in case of new entry in the Country (§2, Article 107).

5) In any case of irregularities subject to deportation, the notification will be of 60 days, before it was 3 to 8 days. In addition, the migrant within this period, is assured of the possibility of regularizing the migratory situation, which is different from the previous law. As well, it is possible to extend this deadline. The 60 days minimum may be disregarded in the cases which the migrant has committed an act contrary to the principles and objectives displayed in the Federal Constitution.

Comments:

The new immigration law is silent on the National Immigration Council, which was created by Article 129 of Law No. 6.815/80.  However, a provisional measure 782 was recently issued on May 31st, 2017 establishing the organization of the Presidency of the Republic and its Ministries, and the National Immigration Council which is expected to be an integral component of the Ministry of Labor (Article 56, II) and grants authority on the definition of immigration policies to the Ministry of Labor.

Having followed the various discussions during the process of drafting and proposing the bill and considering the strong intention of the Law to reduce bureaucracy, we believe there will be significant changes to simplify the immigration process, such as consolidating residency permit applications to a department rather than multiple ministries.

A working group was created by ministerial mandate to elaborate on additional regulations as provision of the New Immigration Law. According to information obtained from the Ministry of Labor, it has already begun performing related activities. We were also informed that there is an effort to present the text, elaborated for the Law regulation, to the public for consultation before publication.

We are following the news and discussions closely and will provide any new relevant information as soon as we obtain it.

Our team it is at your disposal to answer your questions and help you to understand the changes in your business due to the new Law. Please send your questions to comercial@mundivisas.com.br