Brazil: New Changes to Work Visas
On December 23, 2004, Brazil's National Immigration Council announced implementation of Normative Resolutions #61 and #62 that includes a variety of new qualifications and requirements for the 90-day Technical Work Visa, the 12-month Technical Work Visa and the Permanent Resident Work Visa.
According to the new regulations, the most important changes address the Technical Work Visa ("Technical Temporary V") category. Technical visas are issued in 30-day, 90-day and 12-month increments, with the 90-day and 12-month visas utilized for short-term and long-term assignees not subordinated to a Brazilian host payroll nor providing direct employment duties to a Brazilian host company. The technical visa category requires the existence of a specific contract for services executed between the home employer and the Brazilian host company.
Prior to 2005, the Brazilian Ministry of Labor did not require technical visa applicants to evidence relevant proprietary or professional skill prior to transfer to Brazil. The new regulations mandate that 90-day and 12-month Technical Temporary V applicants must evidence a minimum of at least three years of professional skills and/or experience relevant to the proposed activities to be performed in Brazil. Minimum experience must be confirmed in a letter from either the applicant's current employer or previous employers, and the letter must also include an attestation to the fact that the applicant's experience and/or skills are directly relevant to the proposed position in Brazil. If an applicant does not possess a three-year employment history with his or her current employer, letters from both the current and previous employers must be submitted. Each letter must be "legalized" by a Brazilian Consulate.
As the technical visa category is for supernumerary employment (i.e. employment that is not performed via a direct labor contract with a Brazilian host and employment only for a specified period time in order to provide technically-oriented services), the Ministry of Labor will conduct random inspections at the Brazilian host company to ensure that a foreign worker is not performing duties under a direct employment relationship with the Brazilian host. Instances of direct employment could be considered as an employee being paid part or all of his or her salary by a Brazilian host, the employee is not subordinated into the general management structure of the Brazilian company, or the employee having direct hiring and firing authority of a Brazilian national.
If a technical visa holder is found to be participating in a direct employment relationship, the technical visa will be cancelled. 12-month Technical visas will be granted for an initial period of one year, with a single, 12-month extension possible, unless the service agreement includes a "guarantee clause" (i.e. similar to an "extended warranty" clause) that evidences the need for a foreign national's continued services which would require successive visa renewals; however, it remains unclear as to the specific language required to include a guarantee clause. If a Brazilian host requires the services of a technical worker beyond two years, the Brazilian host must hire the worker pursuant to a Brazilian labor contract.
The new regulations also require that a Technical Service Agreement must include a repatriation clause requiring that the contracting Brazilian host guarantees the payment of each foreign worker's return trip to his or her home country; in the alternative, the Brazilian host may execute a separate "repatriation affidavit" to be filed along with the Technical Service Agreement. The repatriation clause or "repatriation affidavit" is required in the event that a foreign worker's home employer does not provide for round-trip expenses.
On a positive note, the Ministry of Labor has lifted two, fairly onerous requirements connected with filing a 90-day Technical Temporary V work permit application. Beginning this month, unlike the 12-month Technical Visa, the Ministry of Labor will no longer require a contract for services between the sending and host companies. Rather, the Brazilian host company can file a "legalized" letter of employment from the sending company evidencing the employee's three-year experience and the skills relevant to the proposed position. In addition, there is no longer a ban against applying for a successive 90-day Technical visa upon the expiration of the initial visa. While this ban has been lifted, it is strongly recommended to exercise caution in applying for "back-to-back" 90-day Technical visas to avoid any suspicion of establishing an employment relationship with the Brazilian company.
The Ministry of Labor also announced changes to the Permanent Worker Visa category, specifically regarding the validity of the visa and the investment capital requirements. Permanent work visas are generally reserved for senior-executive and director-level employees granted power of attorney privileges on behalf of a Brazilian company. Typically, Permanent work visas have been granted for an initial period of five years. However, Permanent Work Visas will now be valid only for the duration of a managing director's appointment as specified in the Brazilian host company's Articles of Association. Therefore, the Ministry of Labor will exercise discretion in determining the validity of a Permanent Work Visa, which is not to exceed an initial period of nine years.
The investment capital required for most Permanent work permit applications is set at US$ 200,000 (per Permanent foreign worker) registered with the Central Bank of Brazil. However, the new regulations may also allow a smaller company to file a Permanent work permit application with at least US$ 50,000 registered capital along with the commitment to create at least ten new jobs for Brazilian nationals within the following two years of operation. In addition, foreign nationals who are members of a Brazilian company's board of directors will be required to obtain a work visa prior to entering Brazil.
Source: Fragomen, Del Rey, Bernsen & Loewy, LLP
