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NOTICE ABOUT THE NEW NORMATIVE RESOLUTIONS

Today’s Federal Official Gazette published the new Normative Resolutions of the National Immigration Council, which rule the granting of residence authorization for work purposes intended to the foreign professionals. The referred Normative Resolutions are related to the provisions set in Law nr. 13.502, as of November 1st, 2017, and in the use of attributions set in Decree nr. 9.199, as of November 20th, 2017.

In this notice we prioritize the news related to the Normative Resolutions, as they are provisions that have a bigger impact in the operations of our clients in Brazil. However, our specialists are available for additional clarifications that are deemed as necessary about other issues related to the new Immigration Law.

 

Normative Resolution 01/2017 – General Procedures:

 

This Normative Resolution will be effective to substitute for the one of number 104/2013, and whose objective is to discipline the procedures for the granting of residence authorizations under the Ministry of Labor competence.

 

We can point out as a highlight for the approval of the application process of residence authorization the obligation to present the following documents:

 

  •  The document that proves the parenthood of the applicant, duly  legalized or apostilled by the Hague Convention whenever applicable and translated by a certified (sworn) translator, except if the information is already contained in the travel document (passport);*
  •  Criminal records certificates, or an equivalent document, issued by  the competent authority where the applicant has resided in the latest five years, duly legalized or apostilled by the Hague Convention whenever applicable and translated by a certified (sworn) translator.*

 

*As per the Normative Resolution the presentation of these documents is released for the purposes of application for authorization of previous residence (we see that this exception applies to authorization applications for those professionals who are not in the Brazilian territory and will wait overseas for the visa stamp after the approval).

 

In the legal provision that is antecedent to this one, the referred documents were only required for the visa stamp in the consulate, after the approval of the process by the Ministry of Labor and the criminal records were required related to the last year.

 

It was also set that the courtesy, visit, diplomatic or official visa may be transformed into residence authorization, the specific Normative Resolution to the purpose of his stay in the national territory being complied.

 

Finally, it should be highlighted about the suppression of the article that referred to the possibility of the granting of the term of up to 60 days for the presentation of the legalization/apostille of the documents produced abroad, with no damage to the process approval.

 

Normative Resolution 02/2017 – Work with employment relations in Brazil:

 

This Normative Resolution will become effective to substitute for the one of number 99/2012, and whose objective is to rule the granting of residence authorization for employment purposes with employment relations in Brazil.

 

The new text presents significant changes, as follows:

 

  •  Among the changes that occurred in this Normative Resolution,  we highlight the ones that make reference to the proof of professional qualification and experience with the activity that the individual will perform in Brazil:
  •   The need to prove one year of experience in the specialization area for those who are hold the Post-Graduation diploma with at least 360 hours of duration (in the past the proof of professional experience was released);
  •   Increase of the experience time period for those who hold a College degree diploma to two years (in the past it was one year);
  •   Increase to four years of experience in one occupation that does not require technical or college level (n the past it was two years) and the minimum schooling in this case will be of 12 years (in the past it was nine years);
  •   The estimate of technical level education included, in this case, three years of professional experience is required;
  •   The term of five years of professional experience is defined for the cases in which the compatibility of the professional profile of the foreigner and the job may be demonstrated by other means.
  •   Only the professionals that hold the title: Masters, Doctorate or College degree compatible with the activities that he will perform in Brazil, are the ones that are exempt from proving professional experience.
  •  Suppression of the article that provisioned the release of proof of the professional qualification and experience with the activity that he will perform in Brazil for the nationals of the South-American countries;
  •  Inclusion of the provision that specifically addresses the Domestic Employees and the standardization of the labor contract template;
  •  Suppression of the article that provisioned the possibility of the foreigner’s dependent person to be able to work. We highlight that this provision is already guaranteed in the legislation and, therefore, it will not bring about changes in the currently adopted procedures;
  •  Suppression of the article that provisions the transformation of the temporary visa into a permanent Visa, but, there is the provision to file for residence authorization for an undetermined term, this change only being an issue of nomenclature;
  •  The time period of residence granted will be of up to two years, limited to four, the rules provisioned in the CLT (Consolidation of the Labor Laws) being complied relative to the Contract Validity Term for determined term (which is limited to two years);
  •  In case of transformation of courtesy, visit, diplomatic or official visa, the authorization term will be of up to 01 (um) year.

 

Normative Resolution 03/2017 – Technical Assistance or technology transfer in Brazil (with no employment relations):

 

This Normative Resolution will become effective to substitute for the one of number 61/04 and 100/13, and whose objective is to rule the granting of residence authorization for purposes of employment with no employment relations in Brazil, to render technical assistance service (technology transfer is excluded, which will begin to be grounded by Normative Resolution n. 04/2017).

 

We highlight some points, as follows:

 

  •  Suppression of the article that provisioned the obligation to prove professional experience;
  •  The residence term of the immigrant who holds a temporary visa based on this Resolution will be of up to one year;
  •  The former Normative Resolution nr. 100 will no longer be effective, and the technical visas that were granted for up to 90 days in the past directly in a consular department, will begin to be authorized by the Ministry of Labor which shall analyze in up to five business days and only after its approval they may be given a stamp at the consular department abroad (this notice between the Ministry of Labor and the Consular Department will occur electronically and immediately);
  •  The residence term for the visa holder based on the previous paragraph will be of 180 days per immigration year and no more than 90 days at every 180 as set in the former Normative Resolution nr. 100;
  •  When it refers to authorization application for technical assistance in an emergency or urgency status (which configures imminent risk to the public safety or hazard to the life of people), the authorization must be analyzed by the Ministry of Labor in up to two business days and only after its approval they can be given a stamp at the consular department abroad (this notice between the Ministry of Labor and the Consular Department will occur electronically and immediately);
  •  By enforcing this Normative Resolution that aims at the rendering of technical assistance service, presenting the training plan will no longer be necessary.

 

Normative Resolution 04/2017 – Technology transfer:

 

This Normative Resolution has as its object to rule the granting of residence authorization for the purposes of work with no employment relations in Brazil, for technology transfer.

 

We highlight some points, as follows:

 

  •  Suppression of the article that provisioned the obligation to prove professional experience;
  •  The residence term of the immigrant who holds the temporary visa based on this Resolution will be one year;
  •  One shall not apply to this Normative Resolution any hypotheses of time reduction for the analysis of the application at the Ministry of Labor;
  •  In the enforcement of this Normative Resolution that aims at the technology transfer, the presentation of a training plan shall be obligatory.

 

Normative Resolution 05/2017 – A Maritime on board of a maritime cruise ships on the Brazilian coast

 

The Normative Resolution shall be effective to substitute for the one of number 71/2006 and whose objective is to rule the residence authorization for the purposes of work with no employment relations in Brazil to a maritime who works on board of a maritime cruise ship on the Brazilian coast.

 

  •  Among the amendments to this provision, we can highlight the proportionality of the Brazilian professionals required on board;
  •  The creation of specific rules for the seasons 2018/2019, 2019/2020, 2020/2021.

 

 

Normative Resolution 06/2017 – Maritime:

 

Normative Resolution nr. 06/2017 addresses the residence authorization for the purposes of work to the immigrant with no employment relations in Brazil to perform professional activities of a maritime with a term of stay longer than 90 days. The new Resolution provisions the previous granting of residence authorization (necessary for the visa granting) and Residence Authorization to the interested party who is located in the national territory.

 

  •  To that immigrant that enters in a long term trip, bearing the maritime booklet issued as per the terms of the International Labor Convention – ILO, who will eventfully work on board of the foreign ship, then prior residence authorization will not be required for the purposes of visa granting;
  •  In relation to the proportionality of the Brazilian workforce, the provisions in the previous Normative Resolution have been maintained, with no amendment;
  •  It provisions the granting of residence authorization by the Ministry of Labor to the interested party who is in the national territory, provided with the estimated document for the purposes of previous residence authorization added by the birth certificate, the criminal records certificate, the Declaration, under the penalties of the law, of absence of criminal records in the last 5 years, and the lists of the crew that was boarded as per the Maritime Authority Norms for transit and permanence of ships in the Brazilian jurisdictional waters;
  •  Provision of the enforcement of the residence authorization for multiple locations of exercise, that is, to all ships of the Client, the transfer of the maritime to another ship of the same contracted company being possible provided this is notified to the Ministry of Labor;
  •  The interested party that belongs to a Brazilian company linked to the operation in Brazilian jurisdictional waters in one of the activities  provisioned in the Resolution is competent to file for a residence authorization application;
  •  The renewal of the residence term was not addressed in the present resolution and will be ruled in a specific normative resolution.

 

It is important to highlight that all the documents produced abroad shall be apostilled as per the Hague Convention. If the country has not adhered to the Hague Convention related to apostille, the interested party shall present the documents in a Brazilian diplomatic department abroad for the purposes of legalization. We also highlight that all the documents issued in a foreign language shall be translated by a certified (sworn) translator in Brazil.

 

Normative Resolution 11/2017 – Management job post in a Brazilian Company:

 

This Normative Resolution shall be effective to substitute for the one of number 62/04, and whose objective is to rule the granting of residence authorization for the immigrant who is the administrator, manager, director or executive with management powers, to represent a civil or commercial company, a group or a corporate group – legal entity.

 

We highlight some points, as follows:

 

  •  The information that the foreign investment must be made by a foreign source settled in Brazil, with potential for job or income generation;
  •  It is important to highlight that the foreign investment amounts have not been altered and remain equal to the text of the former Normative Resolution nr. 62/04;
  •  Addition of the obligation to the air transport exploration and accessory services companies, the applicant shall present a power of attorney delegating powers to the immigrant and the approval letter of appointment of the representative in Brazil, or of its substitute, issued by the National Civil Aviation Agency – Anac;
  •  Information relative to the possibility of obtaining residence authorization in the cases of a non-resident legal entity in Brazil due to the investment of foreign funds by means of the Private Equity Investment Funds (FIP);
  •  The residence term will be undetermined.

 

 

Normative Resolution 13/2017 – Investment of a natural person.

This Normative Resolution will be effective to replace the one of number 118/2015, and whose objective is to rule the granting of authorization for residence so that a natural person may make investment in the country, with own funds of a foreign origin.

We highlight some points, as follows:

  • The referral that the foreign investment must be made in a project with the potential for job or income generation in Brazil;
  • It is important to mention that the foreign investment amounts have not undergone changes and remain the same referred in the text of the former Normative Resolution n. 118/2015. The amount being equal or higher than R$ 500 thousand;
  • The possibility for the investment to be around R$ 150 thousand and R$ 500 thousand remains for the entrepreneur that has the purpose to invest in and activity of innovation, basic or applied research, of a scientific or technological nature. Also demonstrating other conditions already provisioned in the Resolution prior to this one;
  • The presentation of an investment or business plan with an evolution term of 03 years still remains as an obligatory  requisite;
  • The term for residence provisioned by this Resolution will be undetermined, but there is the estimate that the continuity of the residence may be analyzed by the Ministry of Employment by means of the proof of the execution of the investment or business plan, whose corresponding documentation shall be filed in up to 90 days prior to the termination of the granted term.

 

Normative Resolution 17/2017 – Newspaper, magazine, radio, television correspondent or a foreign news agency.

The objective of this Normative Resolution is to rule the granting of the temporary visa to the immigrant who intends to come to Brazil to perform activities as a newspaper, magazine, radio, TV correspondent or a foreign news agency.

The new text presents a few changes with regard to the practice that was being applied to those professionals:

  • The granting of this temporary visa type continues under the responsibility by the Brazilian consular division overseas;
  • Presenting the document that proves that your remuneration comes from a foreign source continues to be mandatory, as well as other documents that demonstrate the relationship of the professional with the communication media abroad;
  • The residence term will be up to 02 years. Its extension will be defined in a future Normative Resolution.

 

This type of authorization for residence may be granted both to the candidate that is abroad and wishes to have his visa stamp before the consular division in Brazil, and to the candidate that is in the national territory and wishes to alter his immigration status without leaving the country.

Normative Resolution 18/2017 – Training at the company whose headquarters is located in Brazil.

This Resolution will be effective to replace the one of number 79/2008, and whose objective is to rule the granting of authorization for residence to the immigrant that is connected to a Transnational Economic Group, whose headquarters is a Brazilian company, who comes to Brazil to perform technical-operational or administrative function, with no employment relations, in a Civil or Commercial Society of the same Economic Group or Conglomerates, for the purposes of training and assimilation of the entrepreneurial culture and management methodology of the Brazilian headquarters, as well as to enable the exchange and sharing of experiences which are inherent to the function performed by the professionals

The new text presents a significant change

  • The residence term will be of up to 02 year and may not be extended, which is different from the provision in the antecedent resolution, which will enable its extension for an equal period;

This type of authorization for residence may be granted both to the candidate who is abroad, and wishes to have his visa stamp before a consular division in Brazil, and the candidate who is in the national territory and wishes to change his immigration status without leaving the country.

Normative Resolution 19/2017 – Professional Training.

This Normative Resolution will be effective to replace the one of number 87/2010, and whose objective is to rule the granting of authorization for residence to the immigrant that is employed by the foreign company, who intends to come to Brazil in order to have professional training at the subsidiary, branch or Brazilian headquarters that belong to the same economic group, with no employment relations in Brazil

The new text presents some significant changes:

  • There will be the need to present a simplified training plan, with the justification of the immigrant training needs in Brazil, specifying the scope, its mode of execution, the location where it will be executed, the granting companies, the duration time and the achieved results. It is important to mention that in the previous Resolution the presentation of this plan was not required, but only the justification of the training need was sufficient;
  • The residence term will be of up to 02  years and shall not be extended, different from the antecedent resolution, which limited the term for only 01 year;

This type of authorization for residence may be granted both to the candidate who is abroad and wants to have his visa stamp before a consular division in Brazil and the candidate who is in the national territory and wishes to change his migration status without leaving the country.

Normative Resolution 20/2017 – Research, teaching or academic extension.

  • This Normative Resolution provisions the issuance of the temporary visa to foreigners who come to Brazil, for a period that is longer than 90 days, in the following conditions:
  • A Scientist or Researcher with no employment relations in Brazil, in order to participate in partnerships between the foreign and Brazilian individuals, directly connected to the areas of science, technology and innovation or technological extension;
  • A Teacher with no employment relations with the Brazilian Institution and, for such, has to be kept by the foreign institutions, with groundings in the inter-institutional agreement or similar instruments signed between the Brazilian and foreign College Education institutions;
  • Scholarship beneficiaries for the purposes of study or research and/or study granted by the Brazilian College Education Institution, recognized by the Ministry of Education;
  • A beneficiary of a scholarship granted by foundations that support College Education and scientific and technological research institutions, to perform research in Brazilian College education institutions, recognized by the Ministry of Education or by other national, technical-scientific institutions recognized by the Ministry of Science, Technology, Innovations and Communications (MCTIC);
  • A Beneficiary of a scholarship financed by the National Council of Scientific and Technological Development (CNPq), by the Coordination for Improvement of College Level People (Capes), by the Financier of Studies and Projects (Finep), and other public foundations that support research;
  • A Scientist, Researcher or Professional who may perform research that is not regulated by Decree 98.830/90;
  • A Scientist, Researcher or Professional who comes to Brazil under the umbrella of an international agreement, thus recognized by the Ministry of Foreign Affairs.
  •  
  • The temporary visa addressed by this Normative Resolution shall be applied directly in a Brazilian Consular Division located abroad;
  •    In addition to the usual documents to apply for the temporary visa, the foreigners shall observe the need to present specific documents related to the condition which he can be framed;
  • The validity term of registry of the authorization for residence based on this Normative Resolution will be of up to 02 years;
  • Foreigners that hold a visit visa may perform in Brazil, under the conditions as listed above, for a period that is no longer than 90 days;
  • The Scientists and/or Researchers may receive payment from the government, from a Brazilian Employer or a private entity  in the form subsistence allowance or related ones, pro-labore and, he may be a candidate to win awards, including in cash, in competitions or contests related to his performance in the country;
  • The immigrant scholarship student must not receive pro-labore.

This type of authorization for residence may be granted both to the candidate who is abroad and wishes to have his visa stamp before a consular division of Brazil, and the candidate who is in the national territory and wishes to change his immigration status without leaving the country.

Normative Resolution 23/2017 – Special situation for the authorization for residence associated to labor issues.

This Normative Resolution provisions the analysis, by the National Immigration Council (CNIg), of applications for authorization of residence connected to labor issues, whose statuses are not expressly provisioned by the CNIg Normative Resolution, and that have elements liable to obtain authorization.

  • Although the text of the Normative Resolution does not expressly present the mode of application, based on the sub-paragraphs of the 2nd article, we understand that the application shall be made by foreigners who are already n Brazil;
  • For the application of the request for Authorization for Residence based on this Normative Resolution, one needs the same documents provisioned in the Normative Resolution 01/2017 added by documents that prove the special status that grounds the application, to CNIg;
  • The residence term provisioned in this Resolution is of up to 02 years;
  • CNIg will take into consideration in the analysis of the requests, the criteria, principles and objectives of labor immigration, set by the pertinent legislation;

The decisions of the application for Authorization for Residence based on this provision shall not constitute jurisprudence to be invoked in other cases

 

Due to the significant amendments in the legislations that rule the immigration process in Brazil, we are at your disposal to hold meetings that may be helpful for a better understanding by our Clients.