Hiring People Without Valid Work Permit in Brazil
Having an authorization issued by the Ministry of Labor is one of the main requirements for foreigners that are coming to work in Brazil. In this article, we will not only discuss the necessity of the work permit for foreigners, but we will also give an overview of the illegal foreign work in Brazil and the its legal consequences for both companies and professionals.
The economic crisis around the world that increased unemployment to alarming rates is leading people up to the point of searching job opportunities in other countries, sometimes very far away from home. Known for its current situation of skilled labour shortage and economic growth, Brazil is increasingly calling the attention of foreigners who are looking for a more stable and promising environment to work.
Even though Brazil offers good opportunities for qualified professionals, in order to work legally in the country, the candidates have to undergo some bureaucratic procedures and posses the required paperwork. Otherwise, there’s no way, the person will join the list of illegal professionals working in Brazil (which, by the way, is already quite long).
In order to work legally in Brazil, aside from the work visa (which is under responsibility of the Ministry of Foreign Relations), foreigners will need a work permit, which is granted by the Conselho Nacional de Imigração (National Council of Immigration, known by the acronym Cnig), a body under the direction of the Brazilian Ministry of Labor.
Who needs a permit to work in Brazil?
First, it is important to emphasize that any kind of visa alone gives foreigners authorization to work in Brazil. In order to do that, foreign workers need to apply for a work permit, which is issued only and exclusively by the Ministry of Labor.
Upon the approval of the application, the work permit will be published in the Official Gazette, and the designated Brazilian Consulate will be notified. Then, the foreigner can apply for the work visa.
Basically everyone that intend to come to Brazil with working purposes will need to get the Ministry of Labor’s authorization, but there are a few exceptions. Let’s distinguish which people need to get the work permit while separating the two different types of work visa:
Temporary work visa
There are seven types of temporary work visa to be issued by the Brazilian Ministry of Foreign Affairs, but not all of them require the issuance of the work permit. Those are: foreigners on voluntary work, on a business travel, and journalists corresponding for foreign medias. However, those professionals cannot receive any money from a Brazilian source.
All other professionals, including artists, athletes, coaches, scientists, teachers and professors must get the work permit before coming to Brazil.
Permanent work visa
All foreigners, regardless their area of performance and including artists, athletes, coaches, scientists, teachers and professors, applying for a permanent work visa in Brazil must present an authorization of the Ministry of Labor beforehand.
One of the two main documents required by the Ministry of Labor to grant the work permit is the contract with a Brazilian company and the company’s declaration that proves the necessity of hiring the foreign professional, what we will explain better in the topic below.
Legal requirements for companies hiring foreigners
The Brazilian companies that hire foreign workers must prove that they have professional qualification, education and experience consistent with the activities they will perform in Brazil. They should also demonstrate the lack of skilled labor in Brazil, since the Ministry of Work only authorizes the admission of foreigners if there is proved lack of qualified Brazilian professionals for that activity.
In order to ensure the labor market for Brazilian professionals, the Ministry of Work also requires the companies to maintain a training program for Brazilian so they can supply the shortage of local workers in a period of up to one year.
Once the foreign hired professional’s permit expired, companies will be required to demonstrate the need for the continued presence of foreigners, even if the company provided the training for Brazilians in that function. Of course, those requirements are only for foreigners not naturalized as Brazilians.
Work permits versus reality in Brazil
One of the major obstacles to the legality of foreign work in Brazil is TIME. Some Brazilian industries and economic sectors urgently need skilled labor in order to maintain their growth. That way, companies cannot wait for the work permits to be processed what can take up to eight weeks, after the request is made at the Ministry of Labor.
Eight weeks is a lot of time for economic sectors that need a great amount of workers immediately. That is the case of the oil and energy industry, for example. Some routine operations conducted this year by the Federal Police estimated that around 2.500 foreign people are working without permits for oil companies in Brazil, mainly in the Campos Basin, located in Rio de Janeiro.
The Government is already taking its measures to simplify the authorization for foreign workers, whose area of operation is suffering with worrying shortages in the country. Even though there are political discussions to simplify and speed the procedures, the legal way is still very bureaucratic and demands a lot of time.
But the slowness of the work permit’s issuance is not the only reason for the foreign illegal work. We have already seen that companies need to prove the lack of Brazilian workers in order to hire foreigners. Some companies cannot justify their need of hiring foreign professionals, because in somes cases, there is simply no reason for it.
In order to save money and time with training and headhunting Brazilian professionals, some companies simply “transfer” the personnel that works on their branches and subsidiaries abroad to Brazil. Without being able to prove the necessity of hiring those professionals (as there are plenty of Brazilians that could do the job), the foreigners enter Brazil as tourists and start to work. Companies know the lack of governmental supervising in that matter, and simply are not afraid to skip the legal steps.
Moreover, the Brazilian labor legislation stipulates quotas for foreigners working in Brazilian companies according to the number of national employees hired. For each foreigner hired, the company must have at least two Brazilians hired. It is not difficult to see companies exceeding that ratio.
An additional topic to be discussed is the exploitation of foreign workers as contemporary slaves in Brazil. Most of the foreigners in those conditions come from African countries and South American countries such as Bolivia, Ecuador, Paraguay and Peru.
Given the condition of illegality of these foreigners, many entrepreneurs submit them to a condition of degrading work. Aside from being subjected to hours of work that reaches more than 15 hours a day, receiving paltry wages, often below the minimum wage hour, those people do not have a minimum environmental conditions to work, they fall in debts by the borrower of their services, their personal documents are retained and they live under constant threat of being reported to the police for being illegally in the country. This framework is more common in urban areas but also occurs in rural areas.
The better known cases are the Bolivians and Peruvians working in the garment industry in the São Paulo state and in charcoals in the North and Northeast regions. But there are countless other cases currently under investigation.
What are the consequences of the illegal foreign work in Brazil?
The Brazilian laws determine the conditions under which a foreigner can work in the national territory. We already discussed the most important of them above. The immigrant who works without fulfilling the Brazilian legal requirements is violating local laws and for that may suffer some consequences, such as fines or deportation.
Usually, the penalty for an illegal foreign worker is the deportation to his country of origin. However, that deportation is not done immediately. The foreigner will first face a lawsuit and may have his freedom restrained until the government arrange the money for his come-back tickets.
Of course, each case is a case. The illegal workers that are most explored and subjected to degrading labor conditions are protected by Brazilian institutions and laws that fight contemporary slavery and have other rights when their situation is discovered by public authorities.
As an attempt to diminish the slavery among foreign workers, in 2010, the Superior Labor Court, established that once proven the employment ties, the foreign worker have all the labor rights granted by the Brazilian law, even if he does not have a work permit and his entrance/residence in the country is illegal.
Also, since December 2009, entered into force a new Federal Law, allowing the settlement and residence of all foreigners working illegally in Brazil. The new law not only benefited foreigners who were with their period of stay expired, but also those who entered the country illegally. These foreigners, mostly coming from other Latin American countries, could regularize their situation in the Brazil and, as a consequence, have all the benefits offered to the Brazilian workers granted, such as: formal contract, payment of social security, wage guarantee fund, free use of the public health system, and free entry and exit from Brazil if necessary.
Despite its good intentions, the new law contradictorily, instituted a system of double standards when comparing the illegal immigrant, now pardoned, with the foreign worker who come to Brazil legally, because while conferring exaggerated benefits to the illegal immigrants, it continues to demand the legal foreign workers to undergo a bureacratic and expensive procedure to get the work permit and even restricting and refusing their requests to work in Brazilian companies, under the argument of protecting the national professionals.
That is a major problem as the overwhelming majority of foreign workers that apply for the work permit are the highly qualified professionals, whom Brazil is most lacking of.
What about the companies that hire foreign workers illegally?
Foreigners cannot work in Brazil before a proper working visa is granted, and illegal work could mean severe punishment for the company, such as heavy fines established by the Federal Police and lawsuits from the Public Ministry. Even though the foreign illegal work is punishable by law, this kind of labor runs freely in Brazil, mostly due to the lack of supervising by the public authorities. Lots of companies take advantage of that, some of them are enormous organizations widely known worldwide.
The legal situation of foreign workers in Brazil is regulated by Law 6,815, of August 19, 1980, ruled by Decree 86,715, of December 10, 1981. Additionally, there are several legal regulations issued by the National Immigration Council (CNIg), the organization from the Ministry of Labor responsible for establishing the immigration national policies and analyzing the work requests.