September 05, 2012
Effective immediately, the Brazilian Ministry of Justice (MOJ) has announced that it will reinstate its requirement that in lieu of a Temporary V-NR#80 visa renewal, renewal applicants will be granted a conditional permanent resident status valid for an additional two-year period.
What’s “Conditional Permanent Residence”?
In October 2011, the MOJ introduced its interpretation of Article 18 of Brazil’s main Immigration Law # 6.815 (August 1980) to allow NR#80 visa holders the ability to apply to amend their status from that of a non-immigrant to a conditional permanent resident visa (“visto permanente condicionado”).
Amending status to a conditional status after only two years of non-immigrant status would be permitted provided (1) the amendment application was made prior to expiration of non-immigrant status and (2) the applicant understood his or her permanent status would be conditioned on remaining in the employ of the original Brazilian company sponsor.
In November 2011, the Brazilian Ministry of Labor (MOL) petitioned the government to stay the MOJ’s interpretation, arguing that allowing foreign national workers the ability to transition so quickly to a permanent residence status within two years, regardless of being conditioned to employment with the Brazilian company sponsorship, opens the way for diluting employment opportunities for Brazilian national workers.
In mid-August 2012, the MOJ and the MOL have reached a mutual agreement that allows the MOJ to reinstate extending stay after two years as a conditional permanent resident under the same terms of employment as those of the original temporary visa.
According to the MOJ, a conditional permanent resident visa will be valid for two years based on extending the labor contract. At the end of two years, conditional permanent residents can apply for unrestricted Brazilian work and residence authorization (a “VIPER” status) valid for up to nine years.
ACTION ITEMS FOR EMPLOYERS
On a practical level, the relationship of work between the Brazilian sponsoring company and the foreign worker will not change under a conditional permanent residence status. Essentially, NR#80 assignees will remain sponsored by their Brazilian company sponsors until the employment relationship is either terminated or until the assignee is eligible to apply for an unrestricted, nine-year VIPER status.
Please note that due to these most recent changes, the MOJ has not yet issued final protocols and requirements to its personnel. Therefore, requirements may change with little to no advance notice.
- Clients are advised that until final protocols are in place, there may be significant delays in processing NR#80 visa applications pending approval until the MOJ issues either a request for additional evidence (an “exigência” or “exigency”) or chooses to approve pending visa renewals as conditional permanent residence visas.
- Clients should anticipate lengthy NR#80 visa renewal processing times of up to eight to ten months. Response to any “exigency” is crucial to keep an assignee in status.
- Currently, the MOJ requires that conditional permanent resident visa amendment applications must be filed at least 30 days in advance of the NR#80 visa expiration date. However, given the lack of final protocols on filing procedures and requirements, it is recommended to file applications at least 90 days in advance of expiration.
- In renewing any Temporary V work status, upon submission of the conditional permanent resident or Temporary V visa renewal application, the Brazilian Federal Police will issue the assignee and each accompanying family member a filing receipt (“protocolo”) that will allow the assignee and family to remain in implied status until final adjudication of their application.
- All foreign nationals in implied status should retain their expired RNE cards along with their current “protocolo”, as this will reflect their valid status in Brazil until their conditional residence permit application is approved by the MOJ.
- Assignees and family members should also note that upon expiration of their Temporary V-NR#80 visas, visa nationals must obtain a Brazilian tourist visa prior to re-entering Brazil. The renewed tourist visa should be presented along with each traveler’s expired RNE card and “protocolo” for re-entry to Brazil.
- Visa-exempt nationals need only to present their original “protocolo”, expired RNE and passport to re-enter Brazil.
- Travel outside Brazil should be limited as much as possible in order to avoid the appearance of abandoning the permanent residence permit application.
- For those foreign nationals who have already resided in Brazil for four consecutive years in Temporary V-RN#80 status, application can still be made for traditional permanent residence visa (“VIPER”) that allows unrestricted authorization to work in Brazil.
Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Glenn Faulk, Senior Manager, Knowledge Management. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in Brazil to provide you this update.