Securing Employment in the USA: Tips for Brazilian Citizens

 As a point of reference, on January 24, 2022, the Brazilian National Immigration Council released Normative Resolution No. 45, which was meant to set rules for the temporary work visas given to foreigners who will work for a foreign company from Brazil ("digital nomad visa"). According to this normative decision, a "digital nomad" is a foreign worker who can do work for a foreign company from Brazil using information and communication technologies. These workers are also known as "digital nomads." This digital nomad visa work visa can be applied for in two ways: (i) while the foreign worker is still outside of Brazil (i.e., before coming to Brazil); or (ii) while the foreign worker is already in Brazil.

How to apply for a visa depends on the option you choose, but the following items are required

Declaration that says the person can do their job from home using ICT (information and communication technologies); Employment or services agreement or any other paperwork that shows the connection with the foreign company; and Proof of a foreign source of income equal to or greater than USD 1,500 per month or the ability to access bank funds in an amount at least equal to USD 18,000. The digital nomad visa can be given for one year and can be renewed once for another year. Additionally, the normative resolution says that a foreign worker in Brazil with a visit visa (i.e., for tourism and only business activities in Brazil) can do remote work while in the country as long as they stay for no more than the maximum number of days allowed by their nationality, which is usually between 90 and 180 days. So, the foreign worker doesn't need to apply for a digital nomad visa if they are only going to be in Brazil for 90 to 180 days. A foreign worker who wants to stay longer, on the other hand, will need to apply for a digital nomad visa. How long it takes to finish will depend on which option the foreigner chooses. If the foreigner chose option (i), he or she will need to take the request for a work visa to the Brazilian Consulate abroad, which is usually the one closest to where the foreigner lives. The Consulate has a set amount of time to review the request and issue the work visa, which could be anywhere from 15 to 30 days. If the foreigner chose option (ii), they would have to give their work visa request to the General Coordination of Immigration ("Coordination"). They would have 30 days to look it over and make a decision. It could take the Coordination longer than 30 days to look into the request, depending on how busy it is. The Coordination may also ask for more information in order to finish reviewing the work visa request, which could lead to an extension of the time frame that was already stated. If the Coordination agrees to the work visa request, it will be put in the Official Gazette. This could take anywhere from 5 to 7 days.

Chance of "permanent establishment"

Does the work of the remote worker pose a chance of "permanent establishment" for the foreign company? If so, what are the main things that determine the exposure? It is not clear from Brazilian law what a "permanent establishment" (PE) is or how taxes should be handled within the country. The theory talks about whether the PE should be defined and taxed by national law. However, only Double Taxation Agreements (DTA) can limit this right to tax. Article 7 of the DTA says that a company will only have to pay taxes on its profits in the country where it is based, unless those profits come from a PE. According to Article 5 of the DTA, a PE is the fixed place of business where the company does all or part of its activities. This includes (i) the registered office of the company; (ii) subsidiaries; (iii) offices; and (iv) manufacturing facilities. A person acting in one contracting state on behalf of a company in another contracting state is also a PE if they have the power to make agreements on behalf of the company in the other contracting state. There is an exception for when the person is acting as an independent agent. So, if the foreigner is only in Brazil for a short time to work for the foreign company and doesn't have the power to sign contracts on behalf of the foreign company, that could be used as a reason for not having a permanent establishment. Even so, Double Taxation Agreements don't say anything specific about how the actions of the remote worker affect the business. However, we are aware that some tasks can now be done from afar, eliminating the need to be physically present. Because of this, and even though it's not specifically stated in the DTAs, one could say that a permanent establishment could be defined based on the tasks that the remote workers have developed. There aren't many administrative choices that need to be made about a permanent business. At least two times, the status of a permanent business was recognized, which made it possible to charge income tax. To recognize the permanent establishment in these cases, it was thought that the foreigner's activities in Brazil (based on the specifics of each case) were similar to the presence of a material installation in Brazil that allowed the foreign company to carry out activities in or through that installation.

Payroll needs for social security and other programs in your area

When and how would the remote worker have to follow local rules for social security and other payment issues? Can such standards be met by a company from another country? If so, how? As a first step, since the foreign worker will only be working for a foreign company and not for any Brazilian companies or in the local market, it is possible to suggest that the foreign company's labor law should apply. This way, no social security or labor charges should be paid in Brazil. Even so, there are some risks involved, and there isn't any case law on the subject. Within Brazil, people still believe that the law that applies to the relationship between the parties should be the law that applies in the place where the services are provided. Since the work will be done in Brazil, the foreigner can make a labor claim asking to be given the right to work in Brazil and participate in social security (despite the risks that come with it). We understand that the above risk is lower now that there is a digital nomad visa for people who work from home.