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BRAZILIAN MIGRATION LEGISLATION OVERVIEW

by Suzana Marques e Tatiana Prado

The Law 13.445/2017 (Migration Law), published at the end of 2017, presented
to the national scenario a new way of conducting and interpreting immigration processes, since many changes were presented, both conceptual and practical.


The concepts have received new definitions; the procedures took a new form; the authorities, new roles, and everything began to change, so that Brazilian immigration became very different from the one practiced under the Foreign National Statute.

 

The Migration Law is much more comprehensive and open to the receptivity of immigrants, who had their rights increased and may rely on more abbreviated procedures. There is a real regularization of the migrant in the national territory easiness, a fact that was not observed in previous immigration procedures.

The Decree No. 9.199/2017 also went into the same direction, that is, all the regulation of the Law is presented with a new guise.


Still in this context of change, more than 30 Normative Resolutions have already been published by the National Immigration Council, and each normative resolution presents a distinct situation, with specific framing and precise applicability.

 

Additionally, there are also the Inter-Ministerial Ordinances published by the Ministry of Justice and Public Security, which contribute directly to the regularization of these immigrants.

 

It is important to emphasize the big news regarding the German nationals. Since the National Congress published, on July 23, 2019, the Legislative Decree No. 60, which approved the contents of the Memorandum of Understanding on the Vacation-Work Program which will enable citizens of both countries, aged from 18 to 30 years-old, acquire knowledge about culture and daily life and, at the same time, accumulate work experience. However, the respective normative resolution that will allow the request to be filed has not been published so far.

 

In any case, it is evident that we have a wide range of innovative and differentiated rules and standards, which increasingly drive immigration processes.


In addition to the legislative change, with the change of government in early 2019, Brazilian President Jair Bolsonaro signed Provisional Measure 870, which established the extinction of the Ministry of Labor (former body responsible for examining immigration applications). Thereby, the former competencies of this former Ministry were distributed to other Ministries and, for this reason, (i) Brazilian immigration processes, (ii) Labor Immigration Policy and (iii) National Immigration Council are, then, under the exclusive competence of the Ministry of Justice and Public Safety, which, among other duties, has the responsibility for the care of issues related to nationality, immigration and immigrants.


Regarding visa modalities, they are divided into the following categories: (i) visit; (ii) temporary; (iii) diplomatic; (iv) official and (v) courtesy.

 

Therefore, the Migration Law presents a single modality for the work hypothesis (temporary visa), which is why the permanent visa was terminated. In the past, the permanent visa has always been a very important visa for most executives with representative powers in Brazil and their respective legal dependents, as well as for immigrants that are legal dependents from Brazilians nationals (children / partners / husbands and wives).


Regarding the Residence, it should be noted that the immigrant may present their application while being in Brazil or while abroad. The request made while the immigrant is in Brazil is a great evolution, which enables many procedures without the need of the immigrant to leave the national territory.

 

The former Foreign National Statute (Law 6.815/1980) did not allow the Immigrant, who was already in national territory, to regularize their status, for temporary visa applications. Therefore, a great achievement is the possibility of submitting the residence application while the immigrant is already in Brazil, as  this may shorten the process and avoid higher costs for those involved.
 

With respect to the identity of the immigrant, the former immigrant identification card, previously called RNE (Foreigner ?s National Registration) has been replaced by the National Migratory Registration Card (CRNM).


Finally, it is worth highlighting the issue of infractions and penalties directly linked to the Brazilian immigration process. Firstly, Law No. 13.445/2017 creates a new criminal type, namely, “Promotion of Illegal Migration”, a crime that was duly incorporated into the Brazilian Penal Code, which aims to punish the promotion, by any means, to obtain economic advantage of illegal entry of immigrants in national territory or Brazilians in foreign countries.


Otherwise, alongside the criminal type, there are administrative sanctions that are listed in Law No. 13.445/2017 and ratified in Decree No. 9.199/2017.

Regarding administrative sanctions, it is worthy mentioning that these will apply to both individuals (immigrants) and legal entities (companies). For individuals, the minimum amount of the assessment may be R$ 100.00 (one hundred Reais) and a maximum of R$ 10,000.00 (ten thousand Reais). For Legal Entities (per act) the minimum amount may be R$ 1,000.00 (one thousand Reais) and the maximum of R$ 1,000,000.00 (one million Reais).


 

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