As I mentioned in an earlier article in April this year, the legal framework for foreign nationals’ entry and stay in Brazil is provided by Law number 6815 (August 19th 1980) which in turn is regulated by Decree number 86715 (December 10th 1981).
In that article I dealt with work permits and visas issued to foreign nationals who want to move to Brazil as investors, administrators or directors, or as employees of a Brazilian company, and who obtain so-called “permanent visas” for that purpose. Applications for all those types of work permit have to be made to the General Coordination of Immigration (“CGI”) of the Ministry of Employment in Brasília.
In this article I will look at two other categories of work permit which are also of relevance to foreign companies doing business in Brazil and sending staff there.
These two categories apply to foreign nationals who are transferred to Brazil for a limited period of time and with no employment agreement with the Brazilian company, either (i) for the purposes of receiving professional training in the country, or (ii) under a transfer of technology agreement and/or technical services agreement, or a technical cooperation agreement, or in a situation of emergency.
(i) Work permit and temporary visa for a foreign national to receive training in Brazil at the foreign company’s Brazilian subsidiary, branch or headquarters
A temporary visa may be granted to a foreign national who is an employee of a foreign company, who is to receive professional training from the company’s Brazilian subsidiary, branch or headquarters. The matter is regulated by Normative Resolution number 87 (September 15th 2010) of the Brazilian National Council of Immigration (Conselho Nacional de Imigração – CNI).
As mentioned above, in this case the employee remains employed by the foreign company and no employment relationship is established with the Brazilian company.
The main applicable requirements are the following:
• Proof of the corporate relationship existing between the foreign company and the Brazilian sub-sidiary, branch or headquarters;
• Proof of the employment relationship existing between the foreign company and the foreign national who will be receiving professional training in Brazil;
• Justification as to why the employee is required to train in Brazil;
• Declaration from the Brazilian company stating that the foreign national’s remuneration will be paid by a source located abroad; and
• Any other documents as requested by the CNI.
The work permit is granted by the CGI of the Ministry of Employment. Accordingly, the respective application must be made in Brasilia within a reasonable amount of time before the employee’s intended arrival in Brazil.
The above type of visa is granted for the period of one year, which cannot be extended.
If the professional training involves the operation and maintenance of machinery and equipment produced in the national territory, the temporary visa will be granted for a period of 60 (sixty) days. It can potentially be extended, only once, for a further 60 (sixty) days.
It is important to mention that, in the second case mentioned above, it is not necessary to apply for the work permit in Brasilia. In this case, the request is presented at the Brazilian Consulate with jurisdiction. However, it is still necessary to demonstrate that the employee’s remuneration will be paid from a source located abroad, as well as to provide a letter from the Brazilian company explaining the training to be undertaken by the employee and stating that the Brazilian company is responsible for the foreign national’s stay in Brazil.
(ii) Work permit and Temporary Visa issued to a foreign national on the basis of a technology transfer agreement, a technical services agreement or a technical cooperation agreement between the foreign company and the Brazilian company or in a situation of emergency
A work permit may be granted to a foreign national with no employment relationship with a Brazilian company, pursuant to a transfer of technology agreement and/or a technical services agreement, or a technical cooperation agreement signed between the Brazilian company and the foreign company or in a situation of emergency.
The matter is regulated by Normative Resolution number 61 (December 8th 2004) of the CNI.
Where the application concerns a technology transfer agreement, a technical services agreement or a technical cooperation agreement, the following documentation must be provided upon application to the CGI in Brasília:
• A template form approved by the Ministry of Employment, signed by the legal representative of the applicant Brazilian company;
• Evidence that the candidate has at least 3 (three) years’ professional experience in the activity to be performed in Brazil;
• Original document proving the payment of the individual immigration tax (taxa individual de imigração) DARF – code 6922;
• Articles of Association of the applicant company;
• Document of election, designation or nomination of the representative or administrator of the applicant company;
• Term undertaking to repatriate the foreign national at the time of the termination of his services or by the termination of the contract executed with the foreign company, or when the contract is rescinded;
• Responsibility term, pursuant to which the contracted company undertakes to pay any medical and hospital expenses the foreign national or a member of his family incurs during the period of their stay in Brazil;
• Certified copy of one of the following documents, to demonstrate the existence of a technical or cooperation agreement between the Brazilian company and the foreign company:
• Document issued by the Federal Revenue Service, in the case of sale or purchase of any equipment with technical assistance;
• Signed document, with identified parties, in the case of technical cooperation between companies of the same group, proving the corporate link;
• Document in foreign currency between the Central Bank of Brazil and the foreign legal entity;
• Contract, cooperation agreement or covenant.
• Detailed training plan stating the number of Brazilians who will be trained according to the contract, cooperation agreement or covenant; the foreign national’s professional qualifications; the scope of the training; where it will be conducted, how long it will last, and the outcome expected.
The above-mentioned work permit is granted for the period of one year, which can potentially be extended for another year if necessary (and provided that such a need can be demonstrated to the Brazilian authorities).
The authorization for work can be cancelled if an Employment Fiscal Auditor detects an employment relationship between the foreign national and the Brazilian company.
If the Brazilian company becomes interested in keeping the foreign national in Brazil, the foreign national will have to be hired pursuant to Brazilian employment legislation and another visa, of a permanent type (as referred to in my previous article), will have to be obtained.
In cases where the company needs the foreign national to provide services of technical assistance for a period of up to 90 (ninety) days, a work permit can be granted with the issue of a Temporary Visa, pursuant Article 13, V, of Law number 6.815/80. For that purpose the following documentation will have to be provided:
• Application for the work permit;
• Details of the company and of the applicant;
• Proof that they have at least 3 (three) years’ professional experience in the activity to be performed in Brazil;
• Original document proving payment of the individual immigration tax (taxa individual de imigração) DARF – code 6922;
• Articles of Association of the applicant Brazilian company.
Finally, in a situation of emergency, and at the discretion of the Consular authority, a temporary visa can be issued to a foreign national, only once in each period of 90 (ninety days), for the non-extendable period of 30 (thirty) days.
An emergency situation is defined as one which puts life, the environment or assets at imminent risk, or that has caused the interruption of production or of the provision of services.
Article taken from Brazil Business Brief, Sept 2012.
Topics: Documentation, Employees, Getting Started, and Management