Olavo Caiuby Bernardes^[1]
Legal English Institute, São Paulo
olavo.bernardes@adv.oabsp.org.br

Introduction

For 20 years or so from the 1980s, Brazil became a country of emigrants rather than a country of immigrants. However, the last couple of decades have brought a renewed interest in the country, which has passed new legislation concerning permanent residency based on foreign investment.

Laws concerning immigration visas in Brazil remain complicated. The 2017 Migration Act (Lei de Migração),^[2] came to repeal the 1980 Foreigners’ Statute (Estatuto dos Estrangeiros),^[3] a statute from the era of the military regime, with strong ties to the National Security Doctrine. The new Act introduced ‘regulation with a human face’ regarding refugees and the treatment of foreigners in Brazil, but is, nevertheless, not practical when it comes to professional visas, such as visas for foreign partners and employees, of Brazilian-based companies, and investment-related visas.

Visa categories under the 2017 Migration Act

Article 12 of the 2017 Migration Act establishes the following visa categories in Brazil: ‘I visit; II temporary; III diplomatic; IV official; V complementary’ (emphasis author’s own).

Temporary visas listed under Article 14 include:

‘I. temporary visas, in the following activities: (a) research, teaching, or academic extension; (b) health treatment; (c) humanitarian asylum; (d) studies; (e) work; (f) sabbatical; (g) religious activities or voluntary services; (h) performing investments or activities with economic, social, scientific, technological, or cultural relevance; (i) family reunion; (j) artistic or sports activities, for a limited duration. II. visas for immigrants favoured by bilateral treaties. III other scenarios established by a separate regulation.’ (emphasis author’s own)

Moreover, regarding the 2017 Migration Act, one could cite Article 30:

‘Article 30. Residency can be authorised, via registration, to an immigrant, to a border resident, or to a visitor that complies with one of the following scenarios:

I. residency has a goal: […]

(h). performance of investment on activities with social, scientific, technological, or cultural relevance […]

III. other scenarios established by a separate regulation.’ (emphasis author’s own)

Furthermore, Decree No.9,100/2.017, which regulates the 2017 Migration Act, establishes in Articles 42 and 151:

‘Article 42. A temporary visa may be granted to an immigrant, a natural person who intends, by self-owned foreign-based resources, to perform investments at a Brazilian-based company, in projects with a potential to generate employment or income in the Country.

Section 1. Investments at a Brazilian-based company are:

I. foreign-based resource investments in a Brazilian company, accordingly to Brazilian Central Bank (Banco Central do Brasil – Bacen) regulations;

II. formation of a standard company or corporation; and

III. other scenarios established in foreign investment policies.’ (emphasis author’s own)

And:

‘Article 151. A permanent residency authorisation due to the performance of investment may be granted to an immigrant, a natural person, who intends to perform, or already performs, by self-owned foreign-based resources, investments in a Brazilian-based company, or in projects with the potential to generate jobs or income in the country.

Section 1. Investments at a Brazilian-based company are:

I. foreign-based resource investments at a Brazilian company, accordingly to the Brazilian Central Bank (Banco Central do Brasil – Bacen) regulations;

II. formation of a standard company or corporation; and

III. other scenarios established in foreign investment policies.’ (emphasis author’s own)

On a related note, investment visas tend to be regulated by specific bodies, such as the National Immigration Council (Conselho Nacional de Imigração – CNIg), under the control of the Brazilian Justice and Public Security Ministry (Ministério da Justiça e Segurança Pública do Brasil). The CNIg was created by the now-repealed 1980 Foreigners’ Statute and has been replaced by Presidential Decree No.9,873/2019, and it is the federal body responsible for formulating national immigration policy.^[4]

The CNIg’s authority to issue resolutions on foreign investments

The CNIg’s Legal Resolution No 118 of 21 October 2015 is a concrete example of its authority to issue resolutions on foreign investments. The Resolution regulates investment visas for foreign investments in Brazil, ‘in an amount equal, or greater than BRL500,000, by the introduction of an Investment Plan’.^[5] Furthermore, the Labour and Social Security Ministry’s (Ministério do Trabalho e Previdência Social – MTPS) Immigration Coordination Council (Coordenação-Geral de Imigração – CGIg), may authorise the concession of a permanent visa, ‘when the amount of investment is below BRL500,000, and as long is not less than BRL150,0000, for entrepreneurs who wish to set up business in Brazil, looking to invest in services in innovation, basic or applied research, science or technology’.^[6]

Permanent residency visas based on investments in real estate property and due to job creations are common in many Western countries, such as Canada (Start-Up Visa Program) and the United States (EB-5 Program). In Western Europe for example, there are investment programmes in Portugal (Atividade de Investimento em Portugal – ARI), and Spain (Visado para inversores en España).

With regard to the investment programmes in Portugal and Spain, both commonly known as the 'Golden Visa'; one of the more popular investment options is investment in real estate. This amounts to an investment of around €500,000 in certain regions, with the possibility of lower amounts in specific scenarios, such as job creation or investments in less developed parts of the country. Spain, and especially Portugal’s 'Golden Visa' programmes form the basis for Brazil’s permanent residency visas, based on investments in real estate property.

Those programmes have been quite popular, in the case of Portugal, for Chinese, Russian and, naturally, Brazilian nationals, as they offer the right to remain in Portuguese territory, and therefore, have the right to freely circulate in countries within the European Union and Schengen Area. These programmes were also instrumental in boosting these countries’ economies in the wake of the 2008 financial crisis, even though, according to their critics, the programmes helped increase inflation and spike real estate prices in Portugal, especially in large cities, such as Lisbon and Porto.

CNIg’s Legal Resolution No.36, 2018/Authorisation for Permanent Residency Based on Investments in Real Estate Property (Autorização de Residência por Investimento na Área Imobiliária)

Regarding the situation in Brazil, and following a world trend, permanent residency visas for foreigners based on real estate property investment is already a reality. This was brought about by Legal Resolution CNIg No.36, from 2018, and through the 2017 Migration Act, and its Regulatory Decree (particularly its Article 35).^[7]

According to the Resolution, the amount of investment required for property real estate located in an urban area, is equal or greater than BRL1m (approximately US$186,000).^[8] The amount is lowered to BRL700,000 when a foreign national is acquiring real estate property in the less developed North and Northeast regions.^[9]

The amount for investment in real estate required may be the sum of one or more real estate properties.^[10] Furthermore, real estate for investment may be either developed or developing property.

When purchasing real estate, the request of a foreign national who shares an interest in temporary residency in Brazil, shall be evaluated by the Labour and Social Security Ministry (under Article 3). This Ministry is currently incorporated into Brazil’s Ministry of Economy, a super-ministry under the Bolsonaro administration. The evaluation takes place by demonstrating the existence of documents such as (1) a real estate deed, confirming the ownership of the investor’s real estate property, free from liabilities or liens; (2) a declaration from the authorised credit authority, or registered under national territory before the Brazilian Central Bank (‘Bacen’), confirming the international wire transfer of the capital amount necessary for acquiring the real estate property; (3) a preliminary sales agreement of the real estate, duly registered; (4) an official statement from the Brazil-based credit authority authorised or registered before Bacen, confirming the international wire transfer of the capital amount for acquiring real estate property, or for the payment of a down payment set in the preliminary agreement of the real estate; (5) a construction licence issued under Brazilian Law; (6) articles of incorporation duly registered; and (6) other documents, as set out in the CNIg’s Legal Resolution No.1, from 2017 (the resolution which regulates permanent residency authorisation).

It is also possible to own a joint property, as long as each co-owner has invested the minimum amount set down in Article 2 (BRL1m, or BRL700,000 for real estate in the North/Northeast regions).^[11] Similarly, the real estate investment may be financed in a total amount which surpasses what is established under Article 2.^[12] Assessment of investment performance^[13] is under the jurisdiction of the Labour Department.

Finally, it is worth mentioning that the temporary residency authorisation is valid for two years,^[14] following which authorisation may be converted to a permanent residency, accordingly to the rules brought in by Article 2, of CNIg’s Legal Resolution No.1, 2017 and Article 30, I(h), of the 2017 Migration Act.

Despite the programme’s good intentions, its results have been limited, partly due to a lack of knowledge about the programme by Brazil’s real estate professionals, such as real estate lawyers and brokers, and as a valid available option, including a lack of promotion and instruction by the federal government. As such, in little over a year since the programme has launched, only nine permanent residency visas have been granted to foreigners who purchased real estate property in Brazil. In terms of comparison, in Portugal, in the 12 months from October 2012 when the programme was launched, authorisations granted for acquiring real estate reached almost 500.^[15]

Conclusion

Contrary to what is sometimes anticipated, Brazilian federal law offers an array of investment-related permanent residency visas through which foreign nationals can obtain nationality. The availability of these visas – and, in particular, the visa based on investments in real estate property – does however, need to be promoted more widely outside of Brazil.