Cross-Border Remote Work FAQs Brazil
Assume that a foreign national employee of a foreign company wishes to work remotely for a period of time in your country performing services exclusively for the foreign company and not interacting with the local market in your country.
A. Is work authorisation required? If so, please provide a brief description of the type of visa, procedure, processing time, etc.
Yes, depending on the time of stay and the employee’s citizenship.
For reference, on January 24, 2022, the Brazilian National Immigration Council published the Normative Resolution No. 45 (“normative resolution”) aiming at regulating the granting of temporary work visa for foreigners who will work remotely from Brazil for a foreign company (“digital nomad visa”).
Such normative resolution provides that “digital nomad” is the foreign worker who is able to perform his/her professional activities for a foreign company, remotely from Brazil (i.e., with the use of information and communication technologies), commonly known as “digital nomads”. There are two alternatives for applying for this digital nomad visa work visa: (i) while the foreigner is still abroad (thus, before coming to Brazil) or (ii) when the foreign worker is already in Brazil. The documentation to apply for the visa will vary according to the chosen alternative but includes:
- Declaration attesting the ability of performing the professional activities remotely by means of information and communication technologies;
- Employment or services agreement or any other documents evidencing the relationship with the foreign company; and
- Proof of means of subsistence, from a foreign paying source, in a monthly amount equal to or higher than USD 1,500 or availability of bank funds in the minimum amount of USD 18,000.
The digital nomad visa may be granted for 1 year, renewable once for an equal period.
The normative resolution also establishes that the foreign worker that is in Brazil with a visit visa/condition (i.e., for tourism and only business activities in Brazil) may perform remote work in the country during such visit, provided that the foreign worker observes the maximum period of stay (which usually ranges from 90 days to 180 days depending on his/her nationality).
Thus, if the foreign worker will only stay in Brazil for up to 90/180 days, he/she does not need to apply for digital nomad visa. However, if the foreign worker intends to stay for a longer period, he/she will need to apply for a digital nomad visa.
With respect to processing time, it will depend on the alternative chosen by the foreigner. If foreigner opted for alternative (i), he/she will have to present the work visa request to the Brazilian Consulate abroad (usually, the closest to the foreigner’s residency) and which Consulate has a specific time for analysis and issuance of the work visa, but it may range from 15 to 30 days.
On the other hand, if the foreigner opted for alternative (ii), he/she will have to present the work visa request to the General Coordination of Immigration (“Coordination”), which has 30 days to analyze it and grant a decision. The Coordination may take a longer period than 30 days to analyze the request, which will depend on its workload. The Coordination may also request additional documents in order to conclude the analysis of the work visa request that may cause the extension of the term mentioned before.
Once the work visa request is granted by the Coordination, it will be published in the Official Gazette, which may take about 5 or 7 days.
Risk of 'permanent establishment'
B. Is there risk of 'permanent establishment' consequences for the foreign company by virtue of the remote worker’s activities? If so, what are the main factors determining the exposure.
Brazilian law does not provide for specific internal rules regarding taxation or the definition of a “permanent establishment” (PE). The doctrine debates whether national legislation should define and tax the PE, while only Double Taxation Agreements (DTA) could restrict this right to tax.
As a general rule, Article 7 of the DTA states that a company's profits will be subject to taxation only in the jurisdiction of residence, unless they are attributable to a PE, which is defined by Article 5 of the DTA as the fixed place of business where the company develops all or part of its activities, especially, among others: (i) the registered office of the company; (ii) subsidiaries; (iii) offices; and (iv) manufacturing facilities.
A person who acts in a contracting state on behalf of a company established in the other contracting state is also considered a PE, if this person has and exercises the power to conclude agreements on behalf of the company of the other contracting state; an exception is made if the person is acting as an independent agent.
Thus, if the foreigner is in Brazil for a short term, performing services exclusively for the foreign company, and he/she does not have the power to conclude agreements on behalf of the foreign company, then an argument could be made defending the lack of a permanent establishment.
Nevertheless, Double Taxation Agreements do not expressly address the impact of the remote worker’s activities. However, we recognise that several remote activities have replaced the need for physical presence; thus, although not expressly provided for in the DTAs, one could argue that depending on the activities developed by the remote workers, a permanent establishment could be characterised.
There are few administrative decisions regarding a permanent establishment. In at least two cases, the characterisation of a permanent establishment was recognised, thus allowing the income tax charge. To recognise the permanent establishment in such decisions, it was considered that the activities of such foreigner in Brazil (in view of the circumstances analysed in each case) corresponded to the existence of a material installation, on a permanent basis in Brazil, which allowed the foreign company to perform activities in such installation or through it.
Local social security and other payroll requirements
C. At what point and under what circumstances would the remote worker become subject to local social security and other payroll requirements? Can such requirements be fulfilled by a foreign company, and if so by what mechanisms?
First, considering that the foreign worker will be employed by the foreign company and will not be employed by any Brazilian company or interact with the local market, it is possible to propose that the applicable labour law should be that from the country of the foreign company and therefore, no social security and labour charges should be paid in Brazil. Nevertheless, this is not a risk-free situation and there is no case law concerning the matter.
In Brazil, the current understanding, for labour purposes, is still that the law which should govern the relationship between the parties is the applicable law in the location where the services are rendered. Thus, considering that the services will be rendered in Brazil, the foreigner may file a labour claim requesting to be entitled to Brazilian employment and social security rights (pursuant to such risks associated therewith).
However, considering that now there is a digital nomad visa for remote workers, we understand that the risk above is reduced.
Finally, only Brazilian companies are able to comply with the payment of Brazilian social security charges and payroll requirements. Therefore, to be able to pay labour and social security charges linked to an employee working in Brazil, a foreign company would have to: (i) have a Brazilian subsidiary/affiliated company, and the foreigner would be considered an employee of such company; or (ii) contract a human resources company (like a PEO or employer of records) to hire the foreigner on its behalf and comply with all labour and social security obligations; under in this alternative however, it would no longer be a foreigner employed by a company abroad, but a foreigner employed by a Brazilian company, subject to all Brazilian employment rights. For a foreigner in Brazil for a short term and not performing any activity with the local market, this alternative is unlikely to be adopted.
Local employment law requirements
D. At what point and under what circumstances does the remote worker become subject to local employment law requirements such as is wage-hour, local holidays, annual leave, maternity leave, disability leave, protection against unfair dismissal, etc.
Considering that now we have a regulation related to digital nomad visa, we understand that the circumstances are very reduced. Anyway, as mentioned, the Brazilian labour authorities currently recognise that the law which should govern the relationship between the parties is the applicable law in the location where the services are rendered. Moreover, the court that would be responsible for rendering a ruling in the case, would be the labour court in such location. Based on these concepts, the foreign worker may argue that because he/she is rendering services in Brazil, he/she should be entitled to the rights provided under Brazilian labour and social security law, including the rights established by collective bargaining agreements applicable to his category, and from the time since of his entry into Brazil.
If the foreign company does not have a subsidiary in Brazil, and the foreigner will stay in Brazil for a short term, this risk is unlikely to materialise. The risk increases if the foreign company has a subsidiary/affiliated company in Brazil (because the foreigner may, more easily, file a claim against the Brazilian company) and if the foreigner stays in Brazil for a long period and interacts with the Brazilian market.
In summary, if the foreigner will stay for a short period, will work exclusively for the foreign company and the foreign company does not have a subsidiary/affiliated company in Brazil, the labour and social security risks are remote and a strong argument may exist proposing that the Brazilian labour and social security law does not apply to the foreigner. Nevertheless, due to a lack of specific legislation and because this is a fairly new discussion, it is not possible to confirm that this is a risk-free situation.
Remote foreign worker
E. Are there special requirements governing remote work in your country which would cover the remote foreign worker?
Sections “75-A to 75-E” of the Brazilian Labour Code establish specific rules regulating remote work. For reference, Law No. 14,442 published on September 02, 2022 has changed a little bit some of rules regarding remote work and its concept. According to the new wording of the section 75-B of the law, remote work is that which is performed primarily or not outside the employer's premises, using information and communication technologies.
The law states, in summary, that there should be an agreement between employee and employer related to the remote work including, among others, provisions regarding (i) the activities that will be performed remotely; (ii) acquisition, maintenance or supply of technological equipment and necessary infrastructure; and (iii) reimbursement of expenses incurred by the employee. The employer must also provide, in an express and ostensive manner, the health and safety guidelines to avoid work-related illness and accidents in the remote working system. The employee should sign a responsibility clause stating that he/she has received the guidelines and will comply with them.
The employee who works in the remote working system may be classified as an exempt employee (section 62, III, of the Brazilian labour law, which was also amended by Law No. 14,442) if the employee will provide services by task or production.
As mentioned above, considering that now there is a digital nomad visa for remote workers, we understand that there are good arguments to defend that Brazilian labour law does not apply to a foreigner who comes to Brazil and works only for a foreign company. However, in case the foreign company wants to adopt a very conservative approach, an alternative is to observe the rules related to the remote work system, mainly those regarding the health and safety aspects.
F. What is the employee’s exposure to local income tax, and under what circumstances is the foreign employer required to arrange for withholding of income tax?
As a rule, resident individuals are subject to taxation on a worldwide basis, meaning that all income (both active and passive) derived from Brazilian and foreign sources is subject to income tax in Brazil.
Foreigners will be considered residents in Brazil for tax purposes if they: (i) stay in Brazil for a period longer than 183 days within a period of 12 months or (ii) obtain a work visa/permit (depending on the type of the work visa/permit, the foreigner will be considered a tax resident as from his/her arrival in Brazil and the 183-day rule will not apply). Therefore, they will have to pay income tax over the total amounts received on a worldwide basis.
For instance, a foreigner with a visitor visa is not considered a Brazilian tax resident, except if he/she stays in Brazil for a period longer than 183 days. On the other hand, a foreigner with a family reunion visa or a visa linked to his/her citizenship is considered a Brazilian tax resident as from his/her arrival in Brazil (though some exceptions apply).
It is necessary to analyse whether there is a bilateral income tax treaty between Brazil and the country where the foreigner is from, in order to verify alternatives related to the income tax that would be due in Brazil.
Claim for workplace injury
G. Would the remote worker be entitled to bring a claim for workplace injury in your country?
In accordance with Brazilian law, an accident that takes place during working hours and/or at the workplace is considered a work-related accident. In this case, since the foreigner's workplace would be his/her residence in Brazil, in the event of an accident at his/her residence during working hours, this may be classified as a work-related accident. In addition, as we mentioned above: (i) it is understood that the law that should govern the relationship between the parties is the applicable law in the location where the services are rendered and (ii) the rules regarding remote working systems establish that an employer has the obligation of providing, in an express and ostensive manner, health and safety guidelines to its employees to avoid work-related illnesses and accidents.
In view of the above, the foreigner could file a claim requesting the recognition of a work-related accident and the payment of indemnification in Brazil. For that, he/she would have to file a claim in Brazil against the foreign company (or its Brazilian subsidiary/affiliated company, if any) claiming to be entitled to the Brazilian labour and social security law and therefore, entitled as well to have the work-related accident recognised with the consequent payment of an indemnification and/or other related rights (i.e., job stability). However, although this risk exists, the chances of materialization is very low, mainly because of the regulation relating to the digital nomad visa.
National healthcare system or insurance
H. Would the remote worker be covered under the local national healthcare system or insurance?
In Brazil, there is a national healthcare system, which is known as “SUS”. Foreigners who live in Brazil are covered by SUS. However, despite the fact that this is a universal system, due to the large number of users, which results in an overload of the system, several companies provide healthcare plans for their employees.
Additionally, in order to have access to SUS services, it is necessary to obtain the SUS card. To receive this card, the foreigner is required to have the Brazilian ID (“CRNM”) and also the National Registry of Individual Taxpayers (CPF). Thus, if the foreigner is in Brazil under the circumstances of a visitor, he/she will not have such documents and, consequently, he/she will not be able to obtain the SUS card.
In case the foreigner opted to apply for the digital nomad visa being abroad, one of the requeriments is the presentation of health insurance coverage in Brazil and, therefore, the foreigner will be already covered by an insurance.
On the other hand, for the foreigners who opted to apply for the digital nomad visa in Brazil, although the immigration law does not provide the obligation of presenting a health insurance coverage, we recommend reaching an agreement on this matter with the foreigner, before allowing him/her to come to Brazil. Some companies provide private international health plans to foreigners working from Brazil, while others agree to reimburse medical expenses, and still others agree not to provide any reimbursement or international health insurance plan, especially when the foreigner is the one who initiates the request to work from Brazil.
Data privacy and security
I. Is a foreign employer subject to data privacy and security requirements regarding protection of employee personal information for a foreign employee working remotely in your country?
Yes, the Brazilian data privacy law (“LGPD”) applies to any operation(s) that involves the processing of personal data, carried out by an individual or legal entity, governed by public or private law, and regardless of the country where its corporate headquarters are located or the country where such data is located, provided that:
- the processing operation is carried out in the national territory; or
- the purpose of the processing activity is to offer or provide goods or services or the processing of data of individuals who are located in the national territory; or
- the personal data being processed was collected in the Brazilian territory. For this rule, personal data collected in the national territory is understood as those personal data whose data subject is in the Brazilian territory at the time of the collection.
Foreign remote worker
J. Has there been any litigation or specific law or regulation regarding the foreign remote worker in your country?
Besides the normative resolution mentioned above, there is no other litigation or specific law or regulation regarding foreign remote workers.
K. Would any of the above answers change if the remote worker (a) is a citizen of your country, or (b) engages in activity interacting with the local market?
a. Yes, in that the worker would not need a visa of any kind to enter and work from Brazil. Also, in case of interaction with the local market, the digital nomad visa would not apply for this situation, and the risks of labour and social security inspections increases, along with the risk of labour claims. Considering that the foreigner will be rendering services from Brazil to the Brazilian market, Brazilian labour law would therefore apply.
b. Yes, depending on the activities of the remote worker, his interaction with the local market also increases the risk of creating a permanent establishment in Brazil.