New regulations provide exemptions to criminal records requirements

IMPACT – MEDIUM

What is the change? The Ministry of Labor and Ministry of Justice have published two new regulations providing important exemptions from criminal records requirements and circumstances under which a residence authorization can be canceled or revoked.

What does the change mean? Under the labor regulation (“Nota Técnica MTE nº 003/2018”), foreign nationals applying for an “in country” residence authorization are now exempt from having to submit police clearance certificates as long as they have already presented one to fulfill that requirement for their previous work visa. Previously, foreign nationals were required to present a police clearance certificate from all countries where they had lived during the previous five years. The new exemption includes those who have already submitted a police clearance certificate when they applied for a visa through a Brazilian consulate. The Ministry of Justice regulation (“Portaria MJ nº 06/2018”) provides clear examples of situations when a residence authorization can be canceled or revoked, such as when the applicant has specific criminal violations or when the applicant no longer fits the criteria of his or her original residence authorization, and provides the right to appeal such decisions.

• Implementation time frame: Immediate.
• Visas/permits affected:  Residence authorization.
• Who is affected: Immigrants applying for a residence authorization who already have a valid temporary visa (as required under the old Immigration Law). However, visitor visa applicants and those with expired status in Brazil will not benefit from this exemption.
• Business impact: The exemptions will streamline residence applications for many foreign nationals, as the police clearance requirement can be complicated and time-consuming, depending on the issuing country.
• Next steps: Employees and employers are not required to take any new steps, but should be aware of the exemptions for police clearance certificates.

Background: The 2017 New Immigration Law and its implementing decree overhauled Brazilian immigration, and subsequent normative resolutions in Dec. 8 and Dec. 22, and Ministry of Justice regulations in January have clarified details for immigration categories.

BAL Analysis: The new regulations published by the two ministries clarify important requirements and provide additional guidance on the New Immigration Law. The authorities are making requirements more flexible by exempting certain applicants from having to duplicate the process of obtaining police clearance certificates.

This alert has been provided by the BAL Global Practice group in Brazil. For additional information, please contact brazil@bal.com.

Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.