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The new migration law and visas for foreigners

1. Law 13,445, of May 24, 2017 (“Migration Law”) revoked Law 6,815, of August 19, 1980 (“Statute of the Foreigner”), as well as Law No. 818, of September 18, 1949 (which governs nationality and political rights), and established new rules on migratory policy in Brazil, including the rights and duties of migrants and visitors in Brazil, the entry and stay of foreigners, and the rules for the protection of Brazilians abroad. The Migration Law will come into force on November 22, 2017.

2. Among the main changes brought by the Migration Law, we highlight the rules about the modalities, characteristics, requirements and procedures for the obtainment of visas by foreigners that intend to live in Brazil.

3. The Migration Law extinguished the permanent visa, increased the cases for granting temporary visa (for example, work visas and investors’ visa), and created the residence permit, which can be requested by the foreigner who, for example, requires residing in Brazil for work or investment purposes.

4. It should be noted that, as set forth in the Brazilian Corporate Law and the Brazilian Civil Code, officers, members of the Fiscal Board and attorneys-in-fact of partners must be resident in Brazil to exercise their positions, and these laws do not establish whether such residence should be permanent or not.

5. In turn, the Department of Business Registration and Integration (“DREI”), which regulates the Commercial Registries in Brazil, sets forth by means of Normative Instruction 34, of March 3, 2017, that officers and members of Fiscal Boards must have permanent visas.

6. Considering the extinguishment of the permanent visa and the creation of the residence permit, as per the Migration Law, the requirement of Normative Instruction 34 of the DREI should be better evaluated and eventually adapted, as the case may be.

7. Although the Migration Law does not provide further details about the procedures applying to the obtaining of the residence permit, it is clear that it must be applied for and obtained in Brazil (rather than in the Brazilian Consulate abroad), and it will be a way to regularize the situation of foreigners in Brazil. As per the Migration Law, in general, the cases for granting residence permits are the same for granting temporary visas, and the foreigner can request successive residence permits.

8. There is still no information about the requirements for granting, procedure for obtaining, and period of validity of the visas and residence permits, nor about whether the residence permit will be granted on a temporary or permanent basis. These issues will have to be regulated soon.

9. We emphasize that the visas issued before the Migration Law comes into force can be used until their expiration date. The regulation should provide for the possibility to transform the visa obtained during the Statute of the Foreigner and the extension of its expiration date.

10. It is expected that the early days of effectiveness of the Migration Law will be complex because of the changes to the procedures, the short time to its implementation, and the adjustments that will be necessary.

This newsletter contains information and general comments on legal matters that may interest our clients and friends. It does not represent the legal opinion of our firm on the subjects addressed herein. In specific cases, readers should rely on proper legal assistance before adopting any concrete action relating to the matters addressed herein.

For additional information on the matter, please contact:
Renata A. Pisaneschi and Amanda de O. Gomide