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The CorporateImmigration
Review
Law Business Research
Fifth Edition
Editor
Chris Magrath
The CorporateImmigration Review
The Corporate Immigration ReviewReproduced with permission from Law Business Research Ltd.
This article was first published in The Corporate Immigration Review - Edition 5(published in May 2015 – editor Chris Magrath).
For further information please [email protected]
Law Business Research Ltd
The CorporateImmigration
Review
Fifth Edition
EditorChris Magrath
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i
The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book:
ADVOKATFIRMAN ÖBERG & ASSOCIÉS AB
ARIAS, FÁBREGA & FÁBREGA
ARTON CAPITAL
BAYAT LEGAL SERVICES
BOEKEL
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KHATTARWONG LLP
KING & WOOD MALLESONS
KONDWANI C WILLIAMS CHAMBERS/WHITCO INC
ACKNOWLEDGEMENTS
ii
Acknowledgements
LABORDA ABOGADOS SPA
LETT LAW FIRM P/S
MAGRATH LLP
MALHOTRA & MALHOTRA ASSOCIATES
MICHELS.PMKS RECHTSANWÄLTE PARTNERSCHAFT MBB
MIFSUD & MIFSUD ADVOCATES
MITCHAM & BENJAMIN
NAKAI IMMIGRATION SERVICES TOKYO/OSAKA LPC
ROBERTS & CO, ATTORNEYS AT LAW
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TASSOS PAPADOPOULOS & ASSOCIATES LLC
VEIRANO ADVOGADOS
VWEW ADVOCATEN VOF
iii
Editor’s Preface ..................................................................................................viiChris Magrath
Chapter 1 ANTIGUA & BARBUDA ..........................................................1Sir Clare K Roberts QC, Andrea Roberts Nicholas and Sam M Bayat
Chapter 2 AUSTRALIA ...............................................................................6Anne O’Donoghue and Emma Bigham
Chapter 3 BELGIUM ................................................................................24Henry Hachez
Chapter 4 BRAZIL ....................................................................................38Maria Luisa Soter and Gabriela Lessa
Chapter 5 BULGARIA ..............................................................................48Lora Videva
Chapter 6 CANADA .................................................................................57Sam M Bayat and Philippe Fortin
Chapter 7 CHILE ......................................................................................70Cristian Laborda
Chapter 8 CHINA .....................................................................................82Jiang Junlu and Jin Shan
Chapter 9 CYPRUS ...................................................................................96Maria Clappa and Despina Papaefstathiou
Chapter 10 DENMARK ............................................................................108Jeppe Høyer Jørgensen, Julie Mønsted and Lykke Asmussen
CONTENTS
iv
Contents
Chapter 11 DOMINICA ...........................................................................119Kondwani C Williams and Sam M Bayat
Chapter 12 FRANCE ................................................................................124Karl Waheed
Chapter 13 GERMANY ............................................................................136Gunther Mävers
Chapter 14 GHANA ..................................................................................153Paa Kwesi Hagan
Chapter 15 HONG KONG ......................................................................166Eugene Chow
Chapter 16 INDIA ....................................................................................178Ranjit Malhotra and Anil Malhotra
Chapter 17 ISRAEL ...................................................................................193Tsvi Kan-Tor, Amit Acco and Yoav Noy
Chapter 18 JAPAN ....................................................................................203Masahito Nakai
Chapter 19 LITHUANIA ..........................................................................213Linas Kliukas
Chapter 20 LUXEMBOURG ....................................................................223Pierre Elvinger and Philippe Hoffmann
Chapter 21 MALTA ...................................................................................235Malcolm Mifsud and Joseph Mizzi
Chapter 22 MEXICO ................................................................................245Enrique Arellano Rincón
Chapter 23 NETHERLANDS ..................................................................257Sascha Kuit
v
Contents
Chapter 24 PANAMA ................................................................................268Vivian Holness and Mónica Mendoza
Chapter 25 PERU ......................................................................................275Iván Blume Moore
Chapter 26 SAINT KITTS & NEVIS .......................................................286Constance V Mitcham and Sam M Bayat
Chapter 27 SINGAPORE .........................................................................291Leon Kwong Wing
Chapter 28 SWEDEN ...............................................................................303David Loveday
Chapter 29 UNITED ARAB EMIRATES .................................................328Sam M Bayat and Allison Obaro
Chapter 30 UNITED KINGDOM ...........................................................339Chris Magrath and Ben Sheldrick
Chapter 31 UNITED STATES .................................................................364Stephen J O Maltby and Ellen L Poreda
Chapter 32 URUGUAY .............................................................................379Federico Formento
Appendix 1 ABOUT THE AUTHORS .....................................................391
Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS .....411
vii
EDITOR’S PREFACE
Immigration policy has remained at the fulcrum of political debate, both in the United Kingdom and around the world, for another year. Business immigration practitioners continue to have constant flows of anxious clients – particularly corporate clients – trying to navigate the myriad obligations imposed by ever-more complex immigration regulations and legal right-to-work requirements. Many politicians see the immigration debate as a mechanism with which to gain the attention of their voting public. As we write, the UK coalition government is approaching the end of its five-year term. At present, there is political deadlock between the major parties, which means that smaller parties are likely to play a significant role in the formation of another coalition. By the time our readers begin to leaf through this new edition, a new government will have been formed with a roster of new policies and announcements. All of the political parties wish to state their ground on immigration policy. Their focus groups have advised them that immigration is one of the major political concerns of the electorate. The rise of nationalist parties, such as UKIP in the United Kingdom and the National Front in France, means that the political elite feel compelled to present tougher protectionist immigration regulations in order to enhance their credibility with their electorate. Regardless of the make-up of a new government in United Kingdom, it is very unlikely that there will be a relaxation of immigration policy any time soon.
In the United Kingdom, the past five years have seen a focus on ‘net migration’. This emphasis on the quantitative balance between the annual number of people coming to live in the United Kingdom for more than 12 months minus those going to live abroad for longer than 12 months has proved to be a major political red herring. At the end of its five-year term, the coalition government had to admit to a spectacular failure to meet their target. While the aim was to reduce net migration to the tens of thousands annually, the final reported figure was 298,000. This is primarily because it is impossible to control the influx of migration from the expanded European Union. In fact, the only migrant population that can be constrained to any real extent is the business population of sponsored employees, entrepreneurs and investors. It is for this reason that we have seen increased constraints on these routes of entry over the past few years.
Editor’s Preface
viii
Given the easing of the global economic crisis, and the return to sustained growth and renewed employment in the United Kingdom, legitimate questions arise as to whether continued barriers to skilled migration flow are desirable in any event. There is clearly a conflict between the needs of the economy to create a dynamic skilled labour market and the political impetus to be tough on immigration because of the general perception that it has ‘gone too far’.
The past few years have seen a policy shift away from the ‘managed migration’ agenda of the previous government. The Labour government introduced a number of innovative supply-side immigration policies, including the Highly Skilled Migrant Programme (later converted into Tier 1 (General) under the points-based system (PBS)) as well as flexible routes of entry into sponsored employment under Tier 2. Many of these initiatives were removed by the incoming coalition government following the 2010 election. The United Kingdom’s approach currently focuses on demand-led migration, with increasing emphasis on sponsorship and compliance. The central idea is that those businesses that benefit from migration (by employing the skilled and experienced workers that they need from overseas) should take responsibility for control of the behaviour of the migrant population and the enforcement of immigration control. This results in a vast range of reporting and record-keeping obligations.
The recent Immigration Act 2014 contains a number of highly contentious provisions, including those relating to migrant access to services, such as:• requiring migrants, who do not have Indefinite Leave to Remain, to make a
financial contribution to the National Health Service regardless of whether they already make national insurance contributions;
• requiring landlords to check a tenant’s rights to be in the United Kingdom – similar to Legal Right to Work checks, applied to tenants regardless of nationality; and
• preventing migrants who may not have the right to stay in the United Kingdom from obtaining UK driving licences and opening bank accounts.
‘High-value’ migrants have not escaped the policy shift towards further constraint. The government announced an increase in the threshold investment under the Tier 1 (Investor) programme to £2 million from its longstanding position of £1 million. This has undoubtedly resulted in a downturn in Tier 1 (Investor) applications.
The Tier 1 (Entrepreneur) scheme is now subject to a ‘genuineness test’. Essentially, this means that UK Visas and immigration officials have been given powers of subjective assessment in PBS decision making. One of the proclaimed benefits of the PBS when it was launched in 2008 was the idea of objective decision making against a set of clear and unambiguous attributes that could be assessed by way of points. This benefit is now being eroded.
The introduction of ‘genuineness tests’ across the number of the routes of entry enables entry clearance officers and other decision makers to make subjective decisions regarding an applicant’s ability or intention to meet the requirements of the relevant scheme. Bit by bit, therefore, the government is dismantling the objective nature of PBS and reintroducing the kind of subjective assessments that prevailed under the pre-2008 immigration rules, and which caused so much inconsistency in decision making, as well as a spike in appeals and judicial reviews.
Editor’s Preface
ix
The United Kingdom is not the only country to toughen its immigration system. In Singapore, the Fair Consideration Framework imposes a much more stringent approach to testing the local resident labour market than was historically the case. Employers there face greater scrutiny of their attempts to circumvent the employment of local labour and the Ministry of Manpower takes a very robust approach to non-compliance.
China has also reduced the circumstances in which a business visa is a suitable method of entry to mainland China and imposed a more stringent short term work permit regime on foreign national workers.
There appears to be at a stalemate in United States regarding immigration reform given the fact the President Obama is faced with a hostile Congress that is unlikely to cede ground to any liberal-minded positions. The crucial reforms that have been debated for so many years are undoubtedly a long way off and will not be a feature of the President’s legacy.
We would like to thank the many contributors from around the world who make The Corporate Immigration Review such a valuable source of updated information in respect of the constant changes to immigration policy and regulation around the world.
Chris MagrathMagrath LLPLondonMay 2015
38
Chapter 4
BRAZIL
Maria Luisa Soter and Gabriela Lessa1
I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Brazil is a country with a population of approximately 240 million.2 Immigration has been essential for the development of Brazil today and is still considered a key factor for the future of the country.
Recognising the importance of immigration, new policies aim at making the process faster and easier for foreigners to come to Brazil. Accordingly, in the past two years new procedures have been introduced to expedite and facilitate the granting of some work visas, and also to grant immediate residence in the case of some applications reuniting families and under the Mercosur Agreement.
Another major exception that has been made by the Brazilian government has concerned visas for the 2016 Olympic and Paralympic Games when, depending on the type of work relating to the Games, it has been possible to obtain a work visa without having a Brazilian sponsoring company.
i Legislation and policy3
Law No. 6,815/80 of 19 August, regulated by Decree No. 86,715/81 of 10 December, is the law that governs the legal conditions of foreign citizens in Brazil and created the National Immigration Council. This law gives the general background for immigration, but specific situations and the granting of work permits for different types of work visas
1 Maria Luisa Soter is a partner and Gabriela Lessa is a legal consultant at Veirano Advogados.2 Estimate provided at the official Brazilian Institute of Geography and Statistics at: www.ibge.
gov.br/home/.3 The Immigration Law, Decrees, Administrative Orders, Administrative Resolutions,
Normative Resolutions and Recommended Resolutions are available at http://portal.mte.gov.br/trab_estrang_ing/legislation.htm.
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are regulated by the National Immigration Council through the issuance of Normative Resolutions. At present, there are 41 normative resolutions in effect, which include:a No. 108/14 of 12 February – temporary and permanent visas and permanent
residence for the purposes of family reunion;b No. 104/13 of 16 May – procedures for work permit applications;c No. 101/13 of 23 April – visas for scientists, researchers and foreign professionals
coming to Brazil to participate in conferences, seminars, congresses and meetings and for students of any level of graduation or post-graduation;
d No. 100/13 of 23 April – short-term (90-day) technical assistance visas for foreigners coming to Brazil for technology transfer or rendering of technical services without an employment relationship;
e No. 99/12 of 12 December – work permits for temporary visas with employment contracts in Brazil;
f No. 98/12 of 14 November, amended by No. 112/14 of 12 August – work permits for temporary visas for foreigners coming to Brazil to work exclusively in the preparation, organisation, planning and execution of the FIFA 2013 Confederations Cup, the FIFA 2014 World Cup and the Rio 2016 Olympic and Paralympic Games;
g No. 94/11 of 16 March – temporary visas for foreign students or recently graduated foreigners coming to Brazil under professional exchange programmes;
h No. 87/10 of 15 September – visa for professional training of foreigners who are employees of foreign companies belonging to the same economic group of Brazilian branches or subsidiaries;
i No. 84/09 of 10 February – permanent visas for individual foreign investors;j No. 72/06 of October 10 – temporary visas to work aboard foreign vessels or
platforms;k No. 62/04 of 12 December, amended by No. 95/11 of 10 August and by
No. 104/13 of 16 May – work permits and permanent visas for foreign administrators, managers, directors or officers with management powers, of civil or commercial societies, or economic groups or conglomerates;
l No. 61/04 of 12 December, amended by No. 73/07 of 9 February and by No. 100/13 of 23 April – work permits for foreigners coming under technology transfers or technical assistance agreements, cooperation or partnership agreements, without employment relationships, or in emergency situations;
m No. 45/00 of 14 March amended by No. 95/11 of 10 August – permanent visas for retired foreigners;
n No. 27/98 of 25 November – special and omitted situations for analysis by the National Council of Immigration; and
o No. 06/97 of 21 August, amended by No. 91/10 of 10 November – permanent residence for asylum seekers or refugees and their families.
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ii The immigration authorities
The main authorities responsible for Immigration in Brazil are the Ministry of Labour and Employment,4 the Ministry of Justice5 and the Ministry of Foreign Affairs.6 Under each one of these Ministries they have specific structures to attend the area of Immigration.
Ministry of Labour and Employment The Ministry of Labour and Employment is the government body that is structured to regulate and analyse, through the National Immigration Council and the General Coordination of Immigration, most of the immigration processes and procedures for foreigners to work, study and reside in Brazil.
The National Council of Immigration is composed of appointed representatives from the Ministries of Labour, Justice, Foreign Affairs, Agriculture, Science and Technology, Development, Industry and Foreign Trade, Health and Education. It is also responsible for: a formulating immigration policies and coordinating and directing immigration
actions;b regularly assessing the need for qualified foreign workers for the granting of entry
on a permanent or temporary basis;c undertaking research on immigration-related problems;d issuing norms for immigrant selection aimed at providing specialist workers for
the various sectors of the economy; e collecting resources for specific sectors;f clarifying and presenting solutions for areas not clearly defined in
immigration-related cases; g providing opinions regarding possible changes to immigration law upon their
proposition by any part of the Executive Branch; andh creating internal control regulations, subject to the approval of the Minister of
Labour.
The General Coordination of Immigration is responsible for the analysis and granting of requests for work permits for temporary and permanent visas for foreigners coming to work in Brazil, and also for training and internship purposes.
Ministry of JusticeThe Ministry of Justice is the governmental body that is structured to regulate, through the following divisions, the entry and stay of foreigners in Brazil.
Foreigners Permanency DivisionThe main duties of the Foreigners Permanency Division are to:
4 http://portal.mte.gov.br/trab_estrang/trabalho-estrangeiro.htm.5 www.justica.gov.br/seus-direitos/estrangeiros.6 Detailed information on the Ministry of Foreign Relations can be found at www.itamaraty.
gov.br/index.php?option=com_content&view=article&id=5680&Itemid=194&lang=pt-br.
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a control, guide and execute the activities related to the processing of visas, permanent residence, asylum and extension of the period of the foreigners’ stay in Brazil;
b observe and enforce legislation and case law pertaining to matters within its area of competence; and
c arrange for the publication of official acts related to the division.
This is the division that authorises the entry of a foreign citizen at the port of entry in Brazil and extending the stay while in Brazil.
The Federal Police BureauFederal police agents have the discretionary power to allow the entry of foreigners into the country irrespective of whether they hold appropriate visas. Registration with the federal police and entry onto the Foreigners National Register (RNE) for those who carry temporary or permanent visas is mandatory within 30 days of the date of arrival. In some Brazilian states, the lack of registration within this period will prevent the foreigner from re-entering the country and a new process to request a new visa would be required. Tourists and business visitors are exempt from this rule.
General Coordination of Refugee AffairsGeneral Coordination of Refugee Affairs (CONARE) is the collective body that brings together representative segments of the government sector, civil society and the United Nations, and has the aim of examining the application of the recognition of refugee status, deciding on the termination ex officio or at the request of the competent authorities of refugee status, declaring the loss of refugee status, guiding and coordinating the actions needed for effective protection, assistance, local integration and legal support to refugees, with the participation of ministries and institutions in CONARE, and of approving normative instructions that enable the implementation of the refugee-related legislation.
Department of ForeignersThe main duties of the Department of Foreigners are to process, opine and address the issues related to nationality, naturalisation and the legal status of foreigners. It is also the body responsible for matters related to the coercive measures of expulsion, extradition and deportation, and for instructing processes for the transfer of prisoners, recognition of refugee status and political asylum, and providing support to CONARE.
Division of Compulsory MeasuresThe Division of Compulsory Measures’s main duties are to:a control, guide and execute the activities related to foreign expulsion procedures
and revocation of expulsion; b receive, process and control procedures for the transfer of domestic and foreign
prisoners to serve their sentences in their home country and in Brazil, in compliance with international agreements to which Brazil is a party;
c receive, analyse and prepare the records relating to applications for custody and documentation of active and passive extradition procedures;
d receive, record and control the foreign deportation proceedings;
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e receive, analyse and forward issues relating to incidents concerning Brazilians abroad; and
f cooperate administratively with requests submitted to the Brazilian government by official bodies abroad and by the Brazilian Courts.
Nationality Division and NaturalisationThe main duties of the Nationality Division and Naturalisation are to:a control, guide and execute the activities related to the proceedings for loss of
Brazilian nationality and political rights; b recognise the equal civil rights and obligations or political rights;c change or correct foreigners’ personal or naturalisation records, and issue second
copies of naturalisation or equal rights certificates; d endorse and apostille the naturalisation certificates and equal rights, and issue
clearance certificates of naturalisation; e receive, verify, analyse and control the naturalisation requests; andf propose granting or denial of the naturalisation requests.
Coordination to combat trafficking of personsIts main duties are to prepare, monitor, manage and coordinate public policies to combat human trafficking. Among other activities, it renders direct psychological and social assistance or social advisory services, provides housing, training (professional training courses), health and hospital care, and liaises with other institutions to promote or defend the rights of migrants, enters into cooperation agreements with international organisations to improve the public policy to combat human trafficking and into local agreements with governments of Brazilian states.
Ministry of Foreign RelationsThe Ministry of Foreign Relations (Itamaraty) is the body responsible for foreign policy and international relations of Brazil at the bilateral, regional and multilateral levels. It advises the President in the formulation of the Brazilian foreign policy and implementation of diplomatic relations with foreign states and international organisations. There are a total of 139 embassies, 53 consulates general, 11 consulates, eight vice-consulates, 13 missions or delegations and three offices. It is the Ministry of Foreign Relations, through its embassies and consulates, that is responsible for the issuance of visas to foreigners coming to Brazil.
iii Exemptions and favoured industries
In Brazil, there are no specific legal or favoured industries for immigration purposes. It is, however, mandatory, depending on the type of visa, to respect the two-thirds rule (at least two employees out of every three must be Brazilian),7 or have the candidates transfer technology or know-how, or train Brazilian-registered employees, so we may consider that all industries that are in compliance with these requirements may be seen
7 Article 354 of the Brazilian Labour Code.
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as favoured industries: the more foreign manpower that can come to Brazil to transfer know-how and train Brazilian labour force, the better.
With regard to exemption, there is now a programme called ‘Mais Médicos’.8 This is a federal government programme for the purpose of increasing the number of doctors in specific regions of Brazil. Through an international medical exchange programme that allows foreign physicians to work in Brazil, the government strives to cover the lack of Brazilian professionals willing to work in regions in which there are shortages. The rules of the More Doctors programme for Brazil are in accordance with those of the World Health Organization.
II INTERNATIONAL TREATY OBLIGATIONS
i Mercosur
Decree No. 6.975 of 7 October 2009 regulates the Agreement on Residency for Nationals of the States who are a party to the Mercosur Agreement.
The Mercosur Agreement applies to citizens of Mercosur signatory (Argentina, Brazil, Paraguay and Uruguay) and associated countries (Bolivia, Chile, Colombia, Ecuador and Peru).
Based on the Mercosur Agreement, nationals of any of these countries may apply for temporary residence in any of the other countries, thereby being entitled to work under the same conditions as a national, and after two years may apply for a change of temporary residence to a permanent one.
The application for the temporary residence can be made either abroad or in Brazil, even if the candidate is in Brazil in an irregular situation, in which case he or she does not have to pay a fine and is not subject to any other administrative sanctions.
ii Schengen Agreement
Decree No. 7.821 of 5 October 2012 regulates the Agreement between the Federative Republic of Brazil and the European Union on Short-Term Visa Waiver for Common Passports, signed in Brussels on 8 November 2010.
III THE YEAR IN REVIEW
The recent scandals involving massive corruption at Petrobras9 have led to the bankruptcy of many companies and imprisonment of the owners of some of the most well-known
8 More Doctors – Visa (VICAM). Detailed information on the program and the list of countries whose nationals can apply for this visa can be found at http://miami.itamaraty.gov.br/en-us/more_doctors_for_brazil.xml.
9 Petrobras is a Brazilian publicly traded energy corporation headquartered in Rio de Janeiro, the majority stockholder of which is the Brazilian federal government. Petrobras was considered the largest company in the southern hemisphere by market capitalisation and the largest in Latin America.
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construction companies. Unfortunately, these scandals have also had a direct impact in diminishing the number of offshore work permits that were requested during 2014.
Although these recent events have affected the country, it is unquestionable that there is no longer room for corruption in Brazil, either active or passive. Anti-bribery and foreign corruption laws are observed more closely and beginning to be taken very seriously. The press are eager for a new scandal and so companies have no other option than to work seriously.
Brazil remains a country with huge potential to be exploited. The climate, the soil, its size, the environment and its people will overcome what has occurred in 2014.
Much needs to be done in more diverse sectors, and for this to be accomplished, the need for foreign-qualified manpower is essential, as well as the mix of Brazilian, foreign and multinational companies.
IV EMPLOYER SPONSORSHIP
i Work permits
With the exception of short-term and emergency technical assistance visas, and some visas for the Rio 2016 Olympic and Paralympic Games in which case the visas can be applied for directly at the Brazilian consulate abroad, all other types of work visas require the prior approval of a work permit by the General Coordination of Immigration.
The time line for approval of a work permit is 30 to 45 calendar days. In a case of refusal, it is possible to file an appeal. After approval of a work permit, the Ministry of Foreign Relations sends, within a maximum of five business days, an authorisation for the consulate to process the visa application. The time line for granting of the visa varies – depending on the workload of the consulate, between three business days and two months.
The normative resolutions stipulate the requirements for the granting of work permits for the different types of work visa. The most common work visas are as follows.
Officers’ permanent visa Officers’ permanent visas (No. 62/04, as amended) are appropriate for foreign administrators, managers, officers, directors and executives with managerial powers who come to Brazil as representatives of companies, commercial groups or economic conglomerates.
The company that intends to appoint a foreign national to a managerial position must prove (1) an investment equal to or higher than the equivalent, in foreign currency, of 600,000 reais for each appointed foreign manager, or (2) an investment equal to or higher than the equivalent, in foreign currency, of 150,000 reais, for each appointed foreign manager, and generate a minimum of 10 new jobs during the first two years after the installation of the firm or the arrival of the foreign manager.
Renewal of the migrant’s RNE number and an unconditional permanent visa may be obtained provided that the foreign manager exercises the function for which the work permit was applied, in the designated company, and for the duration of the initial conditional period (period of mandate, or a five-year period if the mandate is for an indeterminate period of time), and, if that is the case, that the job positions were created within the initial two-year period.
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Temporary visa under a labour contractBrazilian companies may require a temporary visa under a labour contract (No. 99/12) in the event that two-thirds of the employees of the Brazilian company are Brazilian citizens and that two-thirds of the total of the company’s payroll is paid to Brazilian employees.
For purposes of this two-thirds rule,10 foreign nationals who have been living in Brazil for 10 years or more and are married to Brazilian citizens or have Brazilian children, Portuguese citizens, irrespective of any other individual situation, and nationals of the Mercosur countries who live in Brazil with residence granted under the Agreement, are treated as Brazilians.
Foreign nationals applying for this visa must prove that they have education, qualification and professional experience compatible with the role to be exercised in Brazil. Education and qualification are proven by means of diplomas or certificates, and for people who do not have a college diploma, a minimum of nine years of study must be proven. In the case of candidates whose artistic or cultural activities do not depend on formal education, a minimum experience of three years in the exercise of the profession must be proven. Such documents must be legalised by the Brazilian consulate in which the documents were issued and translated in Brazil by a sworn public translator.
Professional experience is proven by means of a letter or any other means admitted by law, showing a minimum experience of two years for medium-level candidates, and one year for candidates who hold a bachelor’s degree. Holders of master’s or PhD degrees, or who have attended postgraduate courses with a minimum of 360 class hours, do not need to submit letters of experience.
If the Brazilian sponsoring company belongs to the same economic group of the current employer of the candidate, then a letter of experience may be prepared in Brazil and signed by an officer of the Brazilian company. In this case, the letter should be prepared in Portuguese, and there will be no need for further notarisation or legalisation.
If the individual has not been working for the same economic group for the minimum required period of time, a letter from prior employers or any other document admitted by law, will also be required.
Proof of education, qualification and professional experience is waived (1) for citizens of South American countries; (2) if the visa being applied is for a legal dependant of a foreign national who already holds a temporary visa for Brazil, and (3) exceptionally, if the compatibility between the professional profile of the candidate and the role to be held in Brazil can be demonstrated through other means.
The foreign national will be an employee of the Brazilian company and has the possibility of earning his or her total remuneration in Brazil or part in Brazil and part abroad (split payroll). The labour contract will be governed by Brazilian labour law and the foreign national will have all the benefits provided by the Brazilian labour legislation, such as a Christmas bonus, 30-day annual holiday, holiday bonus, guaranteed severance fund and social security. During the first two years, the employment contract must be for a definite period of time. Should the Brazilian company want to extend the contract beyond a two-year period, the new employment contract must be for an indefinite period of time.
10 Article 354 of the Brazilian Labour Code.
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The visa will be valid for up to two years (either one year renewed for another, or two years from the beginning), and at the end of the second year it can be changed into a permanent visa.
In considering the visa extension or change-of-status request, the following aspects will be taken into consideration:a the need for continuous services to be rendered by the foreign national, respecting
the interests of the Brazilian workers; b compliance with any conditions that may have been established at the moment
the initial work permit was granted; and c the development of the workforce – both Brazilian and foreign employees – from
the moment when the original work permit was granted to the moment when the extension is being requested.
In the case of change of status, a justification presented by the foreign national about his or her intention to permanently settle in Brazil is also required.
Temporary visa under a technical assistance agreement with no labour contract This long-term technical visa (No. 61/04) may be granted for up to a year, renewable for another year, for technicians coming to work in Brazil under a technology transfer or a technical assistance contract, or a cooperation or convention agreement between a Brazilian and a foreign company. Foreign nationals will remain as employees of the foreign company and cannot receive salaries from Brazilian companies. This visa cannot be granted to foreign nationals who will hold functions in Brazil that are merely of an administrative, financial or managerial nature. As part of the work application documentation, a detailed training programme must be submitted, including: a the professional qualifications of the foreign national; b the scope of the training programme; c the number of Brazilians who will be trained; d the form of execution of the training programme; e the place where the training will be given; f the expected duration of the training programme; and g the results expected from the training programme.
For this type of visa, the candidate must have at least three years of experience in an activity related with the services that are being contracted. An authenticated copy of the contract between the Brazilian and the foreign companies for the rendering of services must also be submitted, as well as proof that whoever signed on behalf of the foreign company was empowered to do so.
ii Labour market regulation
The labour market is protected based on the legislation under which for any given three employees, two-thirds must be Brazilian, such rule being applicable to both payroll and headcount.
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iii Rights and duties of sponsored employees
In Brazil, the obligations placed on employees with sponsored status vary depending on the type of visa applied for.
The normal rule is that the foreigner can only work for the employee sponsoring the visa, and only in the position or function for which the work permit was granted. Only when a foreigner holds a permanent unconditional visa, would he or she be free to work for another company.
All temporary visas without a local employment contract, student and internship visas can never be changed to a permanent visa.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Investor and entrepreneur visas are qualified as the same, being regulated by No. 84/09. This visa can be granted to foreign nationals who want to come to Brazil to invest their own foreign capital in Brazil in productive activities. Foreign nationals will need to prove the investment of a minimum amount of the equivalent, in foreign currency, of 150,000 reais.
In special situations, if the investment is lower than the equivalent of 150,000 reais, the National Council of Immigration may render a decision granting a visa to foreign nationals who can prove the social relevance of the projects.
The visa will be conditional for the initial three years and the renewal of the RNE and the unconditional permanent visa will be obtained provided that the foreign national proves, at the end of such term, that he or she remains a foreign investor, that the business plan was complied with, and that the project generated the job positions for Brazilians that were notified in the original visa application.
As to skilled migrants, there is a plan to facilitate visas for certain types of professions such as the More Doctors programme, but it has not yet been implemented.
VI OUTLOOK AND CONCLUSIONS
Brazil is a prominent country for immigration and business. The number of its population, allied with the size of its territory, climate and the opportunity for development of new sectors and industries is enormous.
In Brazil, there is already a variety of industries and sectors that can benefit from the transfer of technology and know-how of companies that have been responsible for developing their business around the globe.
Different industries and sectors such as renewable energy, oil and gas, information technology, health care, manufacturing, biotechnology and pharmaceuticals are just a few in which the transfer of qualified and skilled workers from around the globe could be essential for the development of the sectors in the country.
In 2016, Brazil will host the Olympics in Rio de Janeiro, as it hosted the World Cup in 2014. These major events are not only responsible for encouraging foreigners from all over the world to come and visit Brazil, but also to seek business opportunities.
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Appendix 1
ABOUT THE AUTHORS
MARIA LUISA SOTERVeirano AdvogadosMaria Luisa (Isa) Soter is a partner in the firm’s Rio de Janeiro office. She focuses her practice in the areas of corporate immigration and labour and employment law, advising international and Brazilian corporations on the complexities surrounding successfully navigating Brazilian labour law. Ms Soter also advises companies on immigration matters and manages multiple inbound cases annually for corporate clients across a range of industries, including banking, oil and gas, and telecommunications.
Ms Soter also has a dynamic and varied labour practice, advising Brazilian and international employers on issues related to outsourcing, overtime, collective bargaining agreements, terminations and drug testing. Clients from the United Kingdom, the United States and Australia rely upon Ms Soter’s expertise and knowledge of Brazilian labour codes.
Ms Soter brings a unique perspective to clients based upon her early career experience as a labour judge and her knowledge of, and ability to interpret, key Brazilian labour laws. Serving on the bench from 1992 to 2000, she began her judicial career as a substitute judge in the trial courts and was elevated to presiding judge in 1994. Within two years, she moved to the appellate labour court, where she presided over four different groups of judges, as well as in the specialised section on individual labour disputes and in the specialised section on collective labour disputes.
Ms Soter is an active member of Ius Laboris, an international alliance of leading human resources law practitioners, with more than 2,500 lawyers providing local labour law knowledge and coverage in more than 100 countries. She is also an invited professor on the postgraduate programme at Fundação Getúlio Vargas and used to teach labour law at the Universidade Santa Ursula for three years.
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GABRIELA LESSAVeirano AdvogadosGabriela Lessa focuses her practice in the areas of corporate immigration and intellectual property (IP). She advises in-house counsel, as well as human resources professionals on all aspects of Brazilian, global immigration law and IP-related matters.
Ms Lessa has more than 11 years of experience handling immigration matters and was instrumental in helping to develop the firm’s corporate immigration practice. She works with a broad cross-section of international companies representing multinational corporations in the pharmaceutical, mining, oil and gas, entertainment, and hotel industries. She provides legal assistance on the necessary visas required for working in Brazil, assists with the preparation of specific contracts required for visa purposes, as well as providing assistance in the labour area aiming for compliance with Brazilian legislation, both in connection with immigration and emigration-related issues.
In the IP and corporate practices area, Ms Lessa regularly assists Brazilian and international corporations with trademarks prosecution, copyrights, anti-counterfeiting and contracts in general. She has been responsible for coordinating Wrangler Apparel Corp’s IP work since 2003.
Prior to joining Veirano Advogados, Ms Lessa worked and lived overseas gaining cross-cultural and international experience in Asia, Central America and Europe.
VEIRANO ADVOGADOSAvenida Presidente Wilson 23123rd Floor 20030-021 Rio de JaneiroBrazilTel: +55 21 3824 4747Fax: +55 21 2262 [email protected]@veirano.com.brwww.veirano.com.br