BRAZIL & JAPAN
IMMIGRATION & VISAS
CoordinationJoão Marques da Fonseca Neto
Authors
Fabiano Tatsushi KawaiIdalmir Correia da Luz
Renê RamosSamantha Machado Mendes Sampaio
CollaboratorGuilherme Francisco Alves Ribeiro Dias
EMDOCSÃO PAULO - BRASIL
Carolina GaruttiDaniela Lima
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PREFACE
EMDOC is a company that works in the field of immigration with more than twenty years of experience.
The mission of the company is to provide legal and immigration consulting and support in accommodation and adaptation of expatriates, with commitment and quality in its services, turning the expatriation into an enriching experience. Its success is the direct result of the intelligent and integrated performance of its professional team, which is motivated by the corporate policy, innovative organization, and advanced technological resources.
The main purpose of this work is to inform the corporate community, professionals in the field of Human Resources and International Labor Law about the many categories of work visa contained in the Brazilian and Japanese legislations, presenting to the reader the main characteristics of the immigration law in Brazil and Japan.
The book also describes in its appendix the statistics of these two countries, regarding the main visas of each country and the volume of visas requested in the last few years.
This publication gives particular emphasis to the situations of tourist, business, work, temporary, and permanent visas. Other visa conditions are not described, such as: students, religious missionaries or official visas, among others.
A broader reading of all types of visa authorized by the Brazilian legislation may be obtained in the book “O Estrangeiro no Brasil – Legislação e Comentários” [Foreigners in Brazil – Legislation and Comments] – 4th edition, 2009, which is the main source of this work for the parts related to Brazil.
Nevertheless, when researching a specific immigration situation, the reader is recommended to seek specialized legal advice in order to obtain the best solution for a concrete case.
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Table of Contents
Preface.................................................................................................................93
Chapter 1 – Entities involved with immigration in Brazil................................97
Ministry of Labor and Employment (MTE)............................................................97National Council of Immigration (CNIg)................................................................97Ministry of Justice (MJ).........................................................................................98
Permanence Division of the Department of Foreign Citizens................98Division of the Federal Police Department (Federal Police)..................98
Ministry of Foreign Affairs (MRE).........................................................................98Immigration Division (DIM)....................................................................99Diplomatic missions, consular divisions, vice-consulates and honorary consulates...............................................................................99
Chapter 2 – Visas and immigration controls...................................................100
General comments .............................................................................................100The entry visa……..........……………………………………………………….........100Categories of entry visa…………………...…………………………………............101Tourist visa .........................................................................................................101Temporary visa ..................................................................................................102
.Temporary visa item II: Business .......................................................102
.Temporary visa item V: Work..............................................................103
.General comments.............................................................................104
.Internship (Normative Resolution no. 42/1999)...................................105
.Rendering of technical services (Normative Resolution no. 61/2004)...106
.Visa related to the economic group whose headquarters are a Brazilian company (Normative Resolution no. 79/2008)....................107.Employment Agreement (Normative Resolution No. 80/2008).............108
Permanent visa ..................................................................................................110
.General comments .............................................................................110
.Permanent visa granted to a foreign citizen coming to Brazil to represent a Civil or Corporate Organization, economic Group or Conglomerate (regulated by Normative Resolution 62/04) …………....111.Permanent visa granted to a foreign citizen coming to Brazil as an investor (regulated by Normative Resolution 84/09)........................112
Chapter 3 – Brazil – Registration and enrolments required.........................114
General comments ............................................................................................114National Registry of Foreigners (RNE)...............................................................114National Registry of Individuals of the Ministry of Finance (CPF/MF)................114Social Security and Employment Record (CTPS)..............................................115Driver's license ..................................................................................................115Cancellation of permit and registry ....................................................................115
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Chapter 4 – Brazil – Main infractions and penalties......................................117
General comments .............................................................................................117
Chapter 5 – Japan – Visas and migration controls........................................118
General comments .............................................................................................118Tourist visa .........................................................................................................118Business visa .....................................................................................................119Work visa ………….............................................................................................120Procedure to obtain work visas ….………………………...……………................121
Chapter 6 – Japan – Main infractions and penalties.....................................125
General comments ............................................................................................125
Appendix A........................................................................................................126
Brazil – Statistics of the Ministry of Labor and Employment ..............................126
Appendix B........................................................................................................129
Japan – Statistics of the Japanese Government ...............................................129
CHAPTER 1 – ENTITIES INVOLVED WITH IMMIGRATION IN BRAZIL
Ministry of Labor and Employment (MTE)
The Ministry of Labor and Employment is the entity responsible for granting the work permit to foreign citizen.
Based on the legal precepts of the National Council of Immigration, Federal Law no. 6.815/80 and Decree 86.715/81 (Statute of Foreigners), Consolidation of Labor Laws, and the principles of the Brazilian Federal Constitution, the Ministry of Labor analyzes the requests of work permits and decides on its granting, which, if positive, allows the foreign citizen to obtain the visa at the respective Brazilian Consulate or Embassy and enter Brazil and stay for the period of his/her mission.
The main principles considered by the Ministry of Labor and Employment to authorize foreign citizens to work in Brazil are political, socio-economic, and cultural interests of Brazil, as well as the defense of the national worker.
Also, the Ministry of Labor and Employment is responsible for inspecting foreign workers in Brazil, checking if the companies are complying with the worker's protection legislation, so as to fight informality in the labor market and guarantee the enforcement of the labor law.
Work Permit – administrative act of the Ministry of Labor and Employment (General Immigration Coordination) granted by means of a request by a Brazilian company, according to the legislation in force, which allows foreign citizens to work in Brazil, either with an employment agreement or not, by means of a temporary or permanent visa.
National Council of Immigration (CNIg)
The National Council of Immigration – CNIg is a collegiate entity created by Law no. 6.815 of August 19, 1980, subject to the Ministry of Labor, with organization and operation defined by Decrees no. 840 of June 22, 1993, and no. 3.574 of August 23, 2000, with the purpose to (i) formulate the immigration policy; (ii) coordinate and orient immigration activities; (iii) perform the periodic survey of the needs for qualified foreign citizen labor for permanent or temporary admission; (iv) define the regions described in article 18 of Law no. 6815 of August 1980, and elaborate the respective immigration plans; (v) promote or provide studies of problems related to immigration; (vi) establish rules for the selection of immigrants, so as to E
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provide specialized labor to the several sectors of the national economy and capture resources for specific sectors; (vii) clarify doubts and solve omitted cases regarding immigrants; (viii) issue an opinion about the change of the legislation related to immigration when such a change is suggested by any entity of the Executive Branch; (ix) elaborate its internal rules, which must be subject to the approval of the State Ministry of Labor.
Ministry of Justice (MJ)
As for the theme related to foreign citizens in Brazil, the Ministry of Justice has two main structures, namely:
Permanence Division of the Department of Foreign Citizen – Entity responsible for allowing foreign citizens to stay in Brazil, either by extending a temporary visa, transforming it into a permanent visa, or granting definite permanence to foreign citizens whose spouse or child is Brazilian. Therefore, its main assignments are (i) to control, orient, and execute the activities related to the transformation of visas, definitive permanence, political asylum, and extension of the stay period of foreign citizens in Brazil; (ii) receive, instruct, analyze, and control the process of visa transformation requests, definitive permanence, political asylum, and extension of the stay period of foreign citizens in Brazil; (iii) establish a deadline for the fulfillment of requirements; (iv) determine the filing, approval, and rejection of processes; (v) observe and enforce the legislation and the jurisprudence related to the matters within its competence area; and (vi) arrange for the publication of the official acts inherent to the Division.
Division of the Federal Police Department (Federal Police) – Entity responsible for the inspection and control of the entrance, stay, and departure of foreign citizen in Brazil. Its main competence are (i) to process, issue opinions, and forward subjects related to nationality, naturalization, and legal regime of foreign citizens; (ii) process, issue opinions, and forward matters related to the compulsory measures of ban, extradition, and deportation; (iii) instruct the process related to the transference of convicts to serve their time in their countries of origin, based on agreements of which Brazil is part; (iv) instruct processes or recognition of the status of refugee and political asylum; (v) provide administrative support to the National Committee for Refugees - CONARE.
Ministry of Foreign Affairs (MRE)
The Ministry of Foreign Affairs has the following subjects as its area of competence: (i) international politics; (ii) diplomatic affairs and consular
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services; (iii) participation in commercial, economic, technical, and cultural negotiations with foreign governments and entities; (iv) programs of international cooperation and commercial promotion; and (v) support to Brazilian delegations, entourages, and representations before international and multilateral agencies and entities.
The Ministry of Foreign Affairs has two main structures, namely:
Immigration Division (DIM): Entity responsible for the diplomatic representations of Brazil abroad, control of the issuance of entry visas granted by Brazilian consular divisions abroad, and legalization of documents in Brazil.
As for foreign citizens, its main purpose is, among others:
a) exceptionally, grant in Brazil the visas described in article 4, items I to VII of Law no. 6.815 of August 19, 19980, pursuant to the provisions set forth in article 2 of Normative no. 09 of November 10, 1997, at the discretion of the State Department of Foreign Relations;
b) after having received the document from the Ministry of Labor and Employment in which the work permit is included, forward said authorization to issue the visa to the Brazilian consular division abroad, as indicated in the visa process, via confidential document; and
c) judge cases of granting of temporary or permanent visa for family reunion (Normative no. 36) requested by the Brazilian consular division abroad.
Diplomatic missions, consular divisions, vice-consulates and honorary consulates
Entities of diplomatic representation of Brazil abroad, located in the countries with which Brazil maintains effective diplomatic relations. Its main function is to provide support to Brazilian citizens abroad and grant entry visas to foreign citizens, as well as act as a civil registry and notary office.
Visa – Administrative act in the competence of the Ministry of Foreign Affairs, which is translated by a consular authorization registered on the passport of foreign citizens, which allows them to enter and stay in Brazil after fulfilling the conditions imposed by the immigration legislation.
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CHAPTER 2 – BRAZIL – VISAS AND IMMIGRATION CONTROLS
General comments
The control of the entry of foreign citizens is a practice of national sovereignty present in any country on the globe, and Brazil is no exception.
In Brazil, this control is done by at least three divisions, namely:
1) by the consular divisions, upon request of the entry visa.
2) at the port of entry by agents of the Federal Police, entity of the Federal Police Department, subordinated to the Ministry of Justice.
3) during the stay in Brazil, also by agents of the Federal Police.
As show, the immigration control is carried out in different, cumulative phases. Therefore, the entry visa is an expectation of a right, that is, even though the foreign citizen bears an entry visa, its entrance into national territory may be stopped by the Federal Police.
The entry visa
When planning a trip to a foreign country, regardless of its purpose, one has to take the type of entry visa into consideration.
In Brazil there are several types of entry visas, which vary in accordance with the purpose of the trip to the country.
Any foreign citizen that enters Brazil is required to present the appropriate entry visa, and its granting is in the exclusive competence of Brazilian embassies and consulates abroad, even though some types of visa depend on a previous authorization by the Ministry of Labor and Employment in Brazil.
After the entry visa is issued at the Brazilian consulate or embassy abroad, the foreign citizen must use it within ninety (90) days, otherwise the visa expires. However, in some cases, this period may be extended one time by the authority that issued it.
The entry visa is individual, but may be extended to legal dependents of its bearer. For the sake of foreign politics and considering the principle of
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reciprocity, Brazil may dismiss the need for an entry visa to citizens from certain countries. However, in the case of Japanese individuals willing to enter Brazil and Brazilians willing to go to Japan, this need exists.
Categories of entry visa
The categorization of entry visas aims at a better control of the nature of the activity to be carried out by each foreign citizen. Therefore, there is one type of visa that is appropriate to each situation. According to the Brazilian legislation, the types of visa are the following:
1. transit;2. tourist;3. temporary;4. permanent;5. courtesy;6. official; and7. diplomatic.
In view of their importance in the corporate field, only the tourist visa and the main permanent and temporary visas will be commented herein.
Tourist visa
The tourist visa is granted to foreign citizens that come to Brazil with recreational purposes, visits, and travel, without immigration purposes.
This type of visa is obtained directly at the Brazilian Consulate and is intended to citizens from countries that offer similar treatment to Brazilians, according to the principle of reciprocity.
According to the reciprocity of treatment, Brazil dismisses the presentation of a tourist visa for citizens of certain nationalities, which is not the case of Japanese citizens.
The tourist visa may be issued with an expiration period of up to five (05) years. Regarding Japanese citizens, however, this entry visa is issued with an expiration period of up to ninety (90) days, at the discretion of the consular authority.
Although the validity of the business visa is up to ninety (90) days, the permanence of the foreign citizen in the country may be extended in Brazil for the same period. E
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According to the Brazilian legislation, the tourist visa may also be granted to foreign scientists, teachers, researchers, or professionals willing to come to Brazil for a visit, conference, seminar, congress, or meetings in the field of scientific-technologic and development research, provided that there is no compensation for their activities. This applies to participants of sport competitions and art contests that will not be compensated or receive “cachet” paid by Brazilian sources, even if they compete for prizes, including money.
Except for the last hypothesis, this type of visa does not allow the foreign citizen to perform any type of work in Brazil.
Temporary visa
The temporary visa may be granted with duration of up to two years and is oriented to foreign citizens who intend to settle residence in Brazil for a determined period of time.
There are several categories of temporary visas defined in the Law, which are classified according to the respective number of the subparagraph of article 13 of Law no. 6.815/80. The main categories are the following:
01) Temporary visa item II: business trip;
02) Temporary visa item V: scientist, teacher, technician, or professional of another category under a contractual regime or working for the Brazilian government;
The temporary visas indicated above may be granted only by the consular division that has jurisdiction for the location at which the interested party resided for at least one (01) year, except in cases of force majeure or special cases.
The foreign citizen bearing a temporary visa is not allowed to occupy position or function of administrator, manager, or director of a Brazilian company or open an individual company. Likewise, his/her foreign citizen dependents are not allowed to perform activities for compensation. People in this situation willing to work in Brazil must obtain an appropriate authorization and a new visa, fulfilling all applicable requirements.
Temporary visa item II: Business
The Business, or “Temporary II” visa is oriented to foreign professionals
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traveling to Brazil in specific short-duration business missions without the intention to settle residence in Brazil.
Working in Brazil for a Brazilian company with the business visa, even without any compensation in Brazil and for a short or very short period of time, may generate a penalty to the company and the foreign citizen's compulsory departure from Brazilian territory.
Similarly to the tourist visa, the business visa may be issued with an expiration period of up to five (05) years. Regarding Japanese citizens, however, this entry visa is issued with an expiration period of up to ninety (90) days, at the discretion of the consular authority.
Although the validity of the business visa is ninety (90) days, the permanence of the foreign citizen in the country may be extended in Brazil for the same period.
This stay period is established by the Federal Police upon the foreign citizen's entrance in Brazil. It is important to point out that a shorter period may be determined without the need to provide a justification for such.
Just like the tourist visa, the business visa may also be dismissed by Brazil in view of international agreements or reciprocity of treatment. However, no exception is made to Japanese citizens in this aspect.
Temporary visa item V: work
Temporary visa item V is primarily the one that allows a foreign citizen to work in Brazil.
Except for very rare exceptions, the granting of this type of visa by Brazilian consulates and embassies abroad depends on a previous authorization by the General Immigration Coordination in Brazil, an entity of the Ministry of Labor and Employment.
Once the work permit is approved, the Ministry of Foreign Affairs communicates the approval to consulates and embassies abroad, so that they can issue the corresponding visa.
As a rule of thumb, the consulate or embassy with jurisdiction over the location at which the interested party has maintained residence during the last year, or the consulate of the jurisdiction of his/her nationality, is the competent authority to issue the visa.
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At this level, the temporary visa will not be issued by the consular authority only in specific cases in which the consul finds him/herself legally prevented from granting the visa.
Even though the temporary visa item V is unique, the work permit that supports it may be granted according to several criteria and requirements related to each situation presented to the Ministry of Labor and Employment. Therefore, there may be visas of this type that are valid for ninety days, for instance, one year (with or without the possibility of extension), or even two years, which is the maximum period.
General comments
Dependents
For legal immigration effects, the following are considered as being legal dependents:
i) single children younger than 21 years of age, or older children that are attestedly unable to provide economic maintenance;
ii) parents or grandparents, provided that the effective need for the caller's support is demonstrated;
iii) sibling, grandchild or great-grandchild if orphan, single, and younger than 21 years of age, or any age when the person's incapacity to make a living is attested;
iv) spouse of a Brazilian citizen; and
v) spouse of a temporary or permanent resident foreign citizen in Brazil.
The dependents referred to in items (i) and (iii) shall be considered as such until the calendar year in which they complete 24 years of age, provided they are enrolled in a graduation or post-graduation course and that equal treatment is granted to Brazilians in the foreign citizen's country of origin.
Prohibition of work to dependents
Even though the visa may be extended to the foreign citizen's dependents, the temporary work permit granted by the General Immigration Coordination is valid only to the bearer of the visa. Therefore, his/her dependents are not allowed to perform any activity for compensation without the applicable visa.
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Grace period of 90 days
The Brazilian legislation determined in article 8 of Normative no. 74/2007 that a grace period of 90 days, counted from the expiration of a work permit or its cancellation, must be respected before a new work permit request for the same person by the same company. This provision is not applicable only in the following situations:
1) whatever the type of the new work permit, if the previous permit referred to the technical visa of 90 days (foreseen at Normative no. 61/2004, article 6 of the National Council of Immigration);
2) if the new permit is related to the hiring of the foreign citizen (temporary visa with work permit by Normative no. 64, current 80/2008), and the previous permit was a technical visa (based on Normative no. 61/2004).
Internship (Normative no. 42/1999).
Normative no. 42/1999 provides for the hypothesis of internship within the group with the purpose to absorb knowledge or different techniques to be used in the country of origin.
The criteria for analysis of this type of request are basically the requirement of compensation paid exclusively abroad, and the inclusion of the Brazilian company in the group's system of international transfers through the sending of Brazilian professionals abroad. No minimum experience period is required from the foreign citizen.
Even though the visa may be extended to the foreign citizen's dependents, the temporary work permit granted is valid only to the bearer of the visa. Therefore, his/her dependents are not allowed to perform any activity for compensation in Brazil.
In the case of this type of visa, not even the bearer of the work permit is allowed to perform compensated activities in Brazil. It is crucial that the foreign citizen remains as an employee of the foreign company during his/her stay in Brazil, and that his/her compensation is paid exclusively abroad.
The visa will be the temporary visa item V again, valid for up to one year, with no possibility to extend it.
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Rendering of technical services (Normative no. 61/2004)
This visa is appropriate to foreign citizens that come to Brazil without any binding relationship with the Brazilian company and in order to render services of technical character, transference of technology, or provision of technical assistance services resulting from a contract, cooperation agreement, covenant, or similar agreements that include the transference of labor between a Brazilian company and another company abroad.
In this situation, the foreign citizen will remain as an employee of the foreign company, and therefore is not allowed to receive compensation by the Brazilian company.
It is crucial that the foreign citizen remains as an employee of the foreign company during his/her stay in Brazil, and that his/her compensation is paid exclusively abroad.
Foreign citizens benefited by this type of visa are not allowed to occupy positions of management, that is, represent the company to which they will render services in Brazil, as positions of management are solely allowed to bearers of permanent visas.
Furthermore, administrative, financial, and managerial functions are also excluded from the concept of technical services.
In terms of expiration period, the work visa based on Normative no. 61 is divided into three (3) types:
. Technical visa of one (01) year;
. Technical visa of ninety (90) days; and
. Technical visa for emergency situations, granted for up to thirty (30) days.
Rendering of technical services for one (01) year
As the topic suggests, this visa is oriented to foreign citizens that come to Brazil to render technical services for up to one (01) year.
The main documents required for the granting of this entry visa by the Brazilian government are the following: (i) proof of service provision relationship between the companies for the period of the visa (i.e., machinery import form registered with the competent authorities); (ii) training plan that demonstrates the transference of the foreign technical knowledge to Brazilians; and (iii) proof of experience of the foreign citizen
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that demonstrate that she/he has experience in the area in which he/she will work in Brazil for at least three (03) years.
The temporary visa for the provision of services for one (01) year can be extended once for the same period, provided that the results accomplished by the foreign citizen are attested.
Rendering of technical services for ninety (90) days
This visa is oriented to short-period missions and, therefore, the documentation required for its approval is simpler than that of the previous visa. Basically, it is necessary to demonstrate a binding relationship related to the provision of services between the companies willing to benefit from it.
This type of visa is not extensive to dependents. However, nothing prevents the dependents from entering Brazil with tourist visas.
Rendering of technical services for thirty (30) days
This visa requires the demonstration to the consulate that an emergency exists, that is, a situation of force majeure that poses imminent risk to life, environment, property, or that generated the interruption of production or provision of services. This visa is granted at the discretion of the consular authority.
Also, in view of the speciality of this hypothesis, this temporary visa is not extensive to dependents.
Visa related to the economic group whose headquarters are a Brazilian company (Normative no. 79/2008)
This visa refers to the granting of a work permit to a foreign citizen related to an Economic Group whose headquarters are a Brazilian company. The foreign citizen must come to Brazil to exercise a technical-operational or administrative function, without any labor relationship, in a Civil or Commercial Organization of the same Economic Group or Conglomerate, with the purpose to obtain qualification and assimilate the corporate culture and managerial methodology of the Brazilian headquarters. The visa includes the permission for the interchange and sharing of experiences inherent to the function exercised by the professionals.
For the granting of the work permit and temporary visa to exercise the
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function described herein, it is critical to notice that the requesting entity must be a Brazilian company and headquarters of a transnational economic group, and this is the main requirement for the granting of this type of visa.
In this situation, the foreign citizen will remain as an employee of the foreign company, and therefore is not allowed to receive compensation by the Brazilian company. Also, for this type of request, it is critical that the foreign citizen remains as an employee of the foreign company during his/her stay in Brazil, and that his/her compensation is paid exclusively abroad.
This temporary visa may be granted for up to two (02) years and extended only one time for the same period. This visa cannot be transformed into a permanent visa.
The temporary visa is subject to the training of the foreign citizen on the technical-operational procedures and management of the headquarters regarding the improvement or diffusion of knowledge to the exercise of the function to which the foreign citizen was assigned.
Employment agreement for a pre-established period (Normative no. 80/2008)
This visa is the appropriate visa for foreign professionals that come to work in Brazil supported by an employment contract with a company established in Brazil.
Foreign citizens that come to work in Brazil in this situation are liable to all labor charges as the ones applicable to Brazilian employees, as the employment relationship of said foreign citizens will also be governed by the Brazilian Labor Law – Consolidação das Leis do Trabalho (CLT).
Foreign citizens bearing this type of visa may not occupy management positions, as these positions are prerogatives of bearers of permanent visas.
Requirements
Basically, the Brazilian company must comply with two requirements: (a) for each foreign citizen hired the company must have at least two Brazilian employees, and (b) the relation between the total salaries paid to foreign citizens and Brazilians must follow the same proportion. This is referred to as the “rule of two thirds” and is foreseen at article 354 and in the Consolidation of Labor Laws (CLT).
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The request will be evaluated for the compatibility between the qualification and the professional experience of the foreign citizen and the activity to be carried out in Brazil.
As for the foreign citizen's compensation in Brazil, the parameter to be taken into consideration is that, upon current existence of a professional in activity or function equal or equivalent to that to be occupied by the foreign citizen, the foreign citizen's compensation in Brazil shall be equal or superior to the highest amount paid to such position.
In addition to this, in the case of transference between companies of the same economic group, the amount of the gross monthly salary must be equal or superior to the salary previously received by the foreign citizen abroad as his/her latest compensation, while the employer must observe the provisions of salary equality set forth in the Brazilian Labor Law.
Salary or compensation must be conceived as the monthly gross values. This fact must be observed particularly by groups that follow the policy of agreeing annual salary values, as the Brazil legislation requires the payment of 13 salaries per year, which could reduce the monthly salary value if the amounts defined abroad are annual (which is usually translated into 12 monthly salaries in the country of origin).
Another important requirement to the granting of this temporary visa is the employment agreement, whose contents must comply with the parameters established by the Ministry of Labor and Employment.
Binding labor relationship
The work permit is granted to the work to be carried out at the company that requested it. Therefore, previous authorization by the Ministry of Justice is required if the foreign citizen wishes to leave the company to be hired by another company (employer change process).
On the other hand, the employment agreement may be terminated at any time, respecting the provisions set forth in the Brazilian Labor Law, which shall lead to the cancellation of the work permit. The termination of the employment agreement either naturally or through unilateral termination, must be communicated to the Brazilian authorities.
In the case of corporate reorganizations, only one notification to the Ministry of Labor and Employment shall be accepted within a period of fifteen (15) days from the date of occurrence of such reorganization.
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Also, in the hypothesis of change of position and/or aggregation of other activities to those originally performed by the foreign citizen, the requesting company must provide a justification and an amendment to the employment agreement, when applicable, to the General Immigration Coordination within a maximum period of fifteen (15) days from the date of occurrence of such change.
Before said agreement is prepared and signed, its recommended that its labor consequences are analyzed, as the agreement is a binding instrument between the employed foreign citizen and the employing company for which the foreign citizen will render services.
Dependents of the visa bearer
The extension of the visa to legal dependents (conceived as children younger than 18 years of age and spouse) may be requested jointly with the request for the bearer's permit directly to the Ministry of Labor and Employment. As the dependents' visas are an extension of the bearer's visa, all of them shall have the same expiration date.
Extension and transformation
This visa may be extended and transformed, provided that the requirements imposed by the Brazilian legislation are complied with.
Note: during the period of extension or transformation of the visa, the foreign citizen may leave Brazil freely. However, the foreign citizen's regular entrance requires the presentation of a tourist visa with the purpose of re-entrance in Brazil.
Permanent visa
General comments
The first note to be made about the permanent visa is that, in spite of its “permanent” denomination, it is usually granted with an expiration date.
It is also important to clarify that the Brazilian legislation admits several types of permanent visas, with the main types being the following:
.Permanent visa granted to a foreign citizen coming to Brazil to represent a Civil or Corporate Organization, Economic Group or Conglomerate (regulated by Normative 62/04); Resolution
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.Permanent visa granted to a foreign citizen coming to Brazil as an investor (regulated by Normative no. 84/09);
Dependents
In all categories of permanent visa, the foreign citizen is allowed to bring his/her dependents to Brazil and, opposite to what happens with temporary visa, these dependents are allowed to work in Brazil.
Expiration and binding relationship
The Brazilian legislation establishes that “the granting of the permanent visa may be conditioned, for a period not longer than five (05) years, to the exercise of a certain activity (…).” (Foreigner Statute, article 18).
During said five-year period, the permanent visa shall remain binding to the corporate entity responsible for requesting the foreign citizen's visa in Brazil and the corporate entity shall be responsible for communicating everything related to the foreign citizen's work during his/her stay in Brazil to the Ministry of Labor and Employment.
After this period, the foreign citizen's visa is no longer bound to the function and activities to which he/she was assigned in Brazil and may be modified without previous communication to the Brazilian government.
Permanent visa granted to a foreign citizen coming to Brazil to represent a civil or corporate organization, economic group or conglomerate (regulated by Normative 62/04)
Management positions that imply the representation of a corporate entity established in Brazil, or the practice of management functions, can only be occupied by foreign citizens bearing a permanent visa, as the Brazilian legislation expressly prohibits the exercise of management position or function by a bearer of a temporary visa (Foreigner Statute, article 99, headline).
The granting of the permanent visa requires the company to invest in Brazil the amount of at least two hundred thousand dollars (US$ 200,000.00) per foreign citizen to be assigned to work in Brazil, or the investment of an amount equal or superior to fifty thousand dollars (US$ 50,000.00).
In the first case, the permanent visa may be valid for up to five (05) years,
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while in the second case the visa may be valid for up to two (02) years, bound to a plan to hire Brazilians. It is possible to renew the Foreigner Identification Document (RNE) if all requirements established by the Brazilian government are complied with.
Note: in any of the cases above, the foreign capital invested in Brazil must be registered with the electronic system of the Central Bank of Brazil (SISBACEN), under risk of penalty.
Obligation of concomitance
During the period in which the permanent visa is bound to the company, the selection of the foreign citizen to occupy other statutory positions in the company must be previously requested to the Ministry of Labor and Employment by means of the concomitance process.
This previous authorization is also required in the case of transference of a foreign executive to another company that does not belong to the same economic conglomerate to which belongs the company that called the foreign citizen to Brazil.
Compensation
As for the foreign citizen's compensation in Brazil, the single parameter to be taken into consideration is that, upon current existence of a professional in activity or function equal or equivalent to that to be occupied by the foreign citizen, the foreign citizen's compensation in Brazil shall be equal or superior to the highest amount paid to such position.
In addition to this, in the case of transference between companies of the same economic group, the amount of the gross monthly salary must be equal or superior to the salary previously received by the foreign citizen abroad as his/her latest compensation, while the employer must observe the provisions of salary equality set forth in the Brazilian Labor Law.
Permanent visa granted to a foreign citizen coming to Brazil as an investor (regulated by Normative Resolution no. 84/09)
Foreign citizens willing to move to Brazil to invest their own resources of foreign origin in productive activities in Brazil may obtain this type of permanent visa depending on the previous authorization by the Ministry of Labor and Employment.
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The granting of this permanent visa requires the foreign citizen to invest in Brazil the minimum amount of one hundred and fifty thousand Reais (R$ 150,000.00), to be allocated in a new or currently existing company headquartered in Brazil.
At its own discretion, the Federal Police Department may perform on-site visits to verify the physical existence of the company and its activities.
The permanent visa may be valid for up to three (03) years, depending on the duration of the foreign citizen's mission in Brazil. The replacement of the Foreigner's Identification Document (RNE) may be done at the end of said period by means of a proof that the foreign citizen is still an investor in Brazil and upon the presentation of any other relevant documents.
The renewal of this permanent visa must be obligatorily requested until the date of expiration, which will otherwise be subject to the cancellation of the registration of his/her permanent status.
The granting of the permanent visa is also possible if the foreign citizen invests an amount inferior to one hundred and fifty thousand Reais (R$ 150,000.00) in productive activities in a new or currently existing company in Brazil.
In this case, the analysis of the permanent visa request will be under the responsibility of the National Council of Immigration and must include the social interest of the investment, according to the following criteria: i) number of jobs that will be generated in Brazil, according to the plan of absorption of national labor to be presented by the company that called the foreign citizen; ii) the amount of the investment and the region of Brazil in which it will be applied; iii) economic segment in which the investment will be applied; and iv) contribution to the increase of productivity of assimilation of technology. Note: in any of the cases above, the foreign capital invested in Brazil must be registered with the electronic system of the Central Bank of Brazil (SISBACEN) within a maximum period of thirty (30) days, under risk of penalty.
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CHAPTER 3 – REGISTRATION AND ENROLMENTS REQUIRED
General comments
Once in Brazilian territory, the foreign citizen can request several Brazilian documents. The main documents are: i) RNE (Foreigner Identification Document); ii) CPF/MF (National Registry of Individual Taxpayers of the Ministry of Finance); iii) CTPS (Social Security and Employment Record); and iv) driver's license.
National Registry of Foreigners (RNE)
The national registry of foreign citizens is nothing more than the foreign citizen's identification by means of personal information (particularly name, nationality, birth date and location, parents' names), and fingerprints.
The enrolment with this registry will demonstrate the effective residency of the foreign citizen in Brazil, and such enrollment is mandatory within a period of thirty (30) days from the date of arrival in Brazil with the respective visa.
In case the expatriate fail to submit such enrolment within thirty (30) days after arrival in Brazil with a visa, the expatriate will still be able to do it after paying a penalty. However, if the foreign citizen leaves Brazil without having submit his/her enrolment and try to return after the thirty (30) days, counted from his/her first entry with a visa, the Federal Police may cancel the registration.
National Registry of Individual Taxpayers of the Ministry of Finance (CPF/MF)
The registry of individual taxpayers, CPF/MF, is the foreign citizen's enrolment with the Brazilian Federal Revenue Department. The main purpose of this document is to make the tax life of the bearer feasible in Brazil, enabling him/her to pay taxes, open bank accounts, and maintain financial investments in Brazil.
In the expatriation process, the CPF/MF is also critical for the customs and residency processes.
At the end of the foreign citizen's mission in Brazil, the CPF/MF may be
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closed and cancelled. Otherwise, the foreign citizen will remain as a resident taxpayer in Brazil.
Social Security and Employment Record (CTPS)
The employment record is another identification document of the worker, regardless of his/her nationality. All main elements of the employment agreement must be recorded in it, such as the employer's name, date of admission, function, and amount of the gross monthly salary.
Its mandatory status between employee and employer is established by the CLT (Consolidation of Labor Laws).
This document is not applicable in the case of a visa for the provision of technical services and administrators with permanent visas. In the latter case, the employment record will only be mandatory if a labor relationship exists between the foreign citizen and a Brazilian company. Otherwise, the foreign citizen will be paid fees referred to as “pro-labore” in lieu of being registered as an employee.
Driver's license
As a result of bilateral agreements signed by several countries, foreign citizens of many nationalities have differentiated treatment from Brazilians to obtain the authorization to drive in Brazil.
Japan, however, is not a member of any international agreement with Brazil that grants preferential procedures for Japanese citizens to obtain authorization to drive in Brazil.
Hence, for Japanese citizens to drive in Brazil, they must obtain the so called Brazilian Driver's License (CNH), which requires the approval in tests about the Brazilian traffic laws and practical driving examinations.
Cancellation of permit and registry
The cancellation of the work permit before the Ministry of Labor and Employment is mandatory and must be done by the hiring company in the following cases: (i) if the foreign citizen obtains Brazilian citizenship; (ii) if the foreign citizen has its ban decreed; (iii) if the foreign citizen requires to leave Brazil permanently, expressly give up his/her right to return, according to article 90; (iv) if the foreign citizen stays out of Brazil for a period longer than E
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two years; (v) if the bearer of a temporary or permanent visa obtain the transformation of said visa to an official or diplomatic visa; (vi) if the foreign citizen violates articles 18, 37, paragraph 2, or 99 to 101 of Law no. 6.815 of August 19, 1980; (vii) if temporary [resident] or exiled from his/her country of origin, at the end of his/her stay period in Brazil.
Upon completion of the foreign citizen's mission in Brazil, his/her work permit must be cancelled, as the company committed to repatriate the foreign citizen at the end of his/her stay in Brazil. Therefore, this procedure prevents the continuation of the company's responsibility for the foreign citizen after the end of his/her mission.
At this moment, it is also important to request the cancellation of the foreign citizen's registration with the Federal Police in Brazil.
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CHAPTER 04 – BRAZIL – MAIN INFRACTIONS AND PENALTIES
General comments
The Foreigner Statute (Law 6.815/80) and the Decree that regulates it (Decree 86.715/81) provide for several sanctions applicable both to foreign citizens that enter Brazil and stay illegally in the country and to companies that hire foreign citizens without compliance with the Brazilian immigration law.
The main behaviors that may result in penalties to foreign citizens that enter and remain in Brazil are:
> Enter Brazil clandestinely without an entry visa, if required; > Fail to enroll with the Federal Police when mandatory (i.e., case of temporary visas item V and permanent visas); > Stay in Brazilian territory longer than the period permitted in his/her entry visa; > Fail to inform any changes in his/her residential address to the Ministry of Justice within thirty (30) days from the date of change; > Exercise management and/or administrative function when bearing a temporary visa; > Exercise compensated function in Brazil while being a dependent of a bearer of temporary visa;
These irregular behaviors may result in penalties, deportation, or banning of the foreign citizen from Brazilian territory, as the case may be.
The main behaviors that may result in the application of penalties to the Brazilian company that maintains a professional relationship with a foreign citizen in Brazil are:
> Bring a foreign citizen to Brazil clandestinely or hide a clandestine or irregular foreign citizen; > Employ or make use of services of a foreign citizen in irregular situation; > Employ or make use of the services of a foreign citizen that is not allowed to exercise compensated activities in Brazil;
These irregular behaviors may result in penalties, with no prejudice to the application of any applicable penalties to the foreign citizen as well.
It must be emphasized that the penalties foreseen at the Foreigner Statute are also applicable to the directors of companies established in Brazil and responsible for committing said irregularities. E
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CHAPTER 5 – JAPAN – VISAS AND MIGRATION CONTROLS
General comments
Similarly to Brazil, Japan has a variety of visas for the entry, exit and permanence of foreign citizens in the country. These visas are divided into the following categories:
1. Tourist visa 2. Business visa 3. Work visa 4. Diplomatic visa5. Official visa6. Temporary visitor visa7. Transit visa8. General visa9. Specific visa
In view of their importance in the corporate area, only the tourist visa, the business visa and the main work visas will be commented herein.
Tourist visa
The tourist visa, also known as “temporary visitor visa”, is granted to foreign citizens that intend to enter Japan as visitors, for recreation, sports, visits to relatives, friends, acquaintances and ill people, or to take part in wedding ceremonies, funerals, athletic tournaments or amateur competitions, among others.
The tourist visa does not allow the foreign citizen to work in the Japanese territory in any circumstance.
Usually, the tourist visa allows the permanence of foreign citizens in Japan for up to one hundred and eighty (180) days per each period of one (01) year.
It is possible that the tourist visa is not required for citizens of certain countries as a result of international visa waiver treaties and international reciprocity agreements made with Japan.
The list of countries whose citizens do not need a tourist visa can be found on the website of the Ministry of Foreign Affairs of Japan, http://www.mofa.go.jp/j_info/visit/visa/02.html#a. In the specific case of
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Brazil and Japan, the tourist visa is required for the citizens of both countries.
In the case of Brazilians, the visa expiration is usually correlated to the travel plan. For instance: when informing the Japanese authorities that the trip to Japan will last for ten (10) days, the visa may be granted for a period of fifteen (15) days.
Business visa
The business visa, also known as “temporary visitor visa”, is granted to foreign citizens traveling to Japan to take part in business meetings, sign contracts, perform market surveys, inspections or visits to factories, lectures, and post-sale services for equipment imported by Japan, including the installation and repair of computer equipment and software foreseen at in contracts, among other things.
The activities above are not considered as work, effectively, which is forbidden to bearers of a business visa.
Therefore, even when performing such activities, foreign citizens bearing a business visa are not allowed to be compensated by or take orders from the Japanese company.
This way, foreign citizens bearing a business visa will be in Japan representing a foreign company and their employers out of Japan. There should be any sort of subordination to or compensation by the Japanese company, an appropriate work visa must be arranged.
The business visa to Japan must be requested to the Japanese consulate of the requester's country of origin. The documentation and time required to obtain the visa may vary according to each Japanese consulate.
Usually, the business visa allows the permanence of foreign citizens in Japan for up to one hundred and eighty (180) days per each period of one (01) year.
Citizens from countries that have a visa waiver agreement or a reciprocity agreement with Japan do not need this type of visa.
The list of such countries is found on the website of the Ministry of Foreign Affairs of Japan, http://www.mofa.go.jp/j_info/visit/visa/02.html#a. In the specific case of Brazil and Japan, the business visa is required for the citizens of both countries. E
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In the case of Brazilians, the visa expiration is usually correlated to the invitation letter prepared by the company, which contains justifications to the Japanese government for the need of a business visa. For instance, if such letter informs that a Brazilian should stay in Japan for fifteen days, this may be the expiration period of his/her business visa.
Work visas
Usually, work visas are granted to the following professional categories: teachers, artists, religious activities, journalists, investors/business managers, legal or accounting services, medical services, researchers, instructors, engineers, experts in humanities and international services, hosts of TV shows, comedians, and qualified workers. Work visas are also intended to foreign professionals transferred from a foreign company to a Japanese company that are part of the same group. This is conventionally referred to as intra-company transference.
The activities that the foreign citizen will perform in Japan will correspond to a specific residence status to which the foreign citizen is bond during his/her stay in the country. Therefore, a change in the activities of the foreign citizen or the employer requires a previous authorization by the Japanese government (status modification).
Main work visas
Among the several visas existing in Japan, the types that are used the most in the corporate world are those destined to:
Investors/business managers
Investors are those who invest a certain amount in Japan to start a commercial activity, or invest in companies already established in the country in order to operate or manage them.
The business in consideration must fulfill certain conditions and hire at least two (02) Japanese employees in full time regime.
Business managers, on their turn, are those involved in a managerial work and must meet some specific criteria, such as academic background, professional background, etc.
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Intra-company transferences
This type of transference involves the transference of foreign employees between companies of the same group for a limited period, and the foreign citizen must attest at least one (01) year of experience immediately prior to the transference, as well as his/her academic background.
The compensation paid to the foreign citizen during his/her stay in Japan must be equal or superior to the compensation paid to Japanese citizens that perform the same work.
Experts in Humanities/International Services
The work visa for experts in humanities and international services may be granted to foreign citizens with knowledge in jurisprudence, economy, sociology, or correlated areas, as well as activities that require knowledge based on the experience with foreign cultures, such as interpretation, translation, international trade, international finances, public relations, etc., provided that certain specific conditions are met.
The compensation to the bearer of a work visa that is included in one of the situations mentioned above must be equal or superior to the compensation paid to the Japanese citizens that perform the same type of work.
Engineers (or correlated areas)
In this hypothesis, the foreign citizen must have a university degree and/or knowledge required to perform the function, or also ten (10) years of professional experience.
The compensation to be paid to the foreign citizen must be equal or superior to the compensation paid to Japanese citizens that perform the same type of work.
Procedure to obtain work visas
The most common procedure to obtain the Japanese work visa includes the following steps:
1. Requesting the Certificate of Eligibility (COE) at the regional immigration office located at the city of the company requesting the visa in Japan. E
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The Certificate of Eligibility is used by the Japanese government to verify the company that requested the visa, the details of the transference, and the fulfillment of the Japanese immigration laws.
In this step, the government will check if the foreign citizen meets several conditions, including those that certify that the company to be developed in Japan is valid, and the existence of a residence status corresponding to it, other than a temporary visitor visa.
The bearer of a Certificate of Eligibility will have the consular procedure of visa request facilitated, as the Japanese consulate abroad, with submission of such certificate, will not have to request authorization from the Ministry of Foreign Affairs to grant the work visa.
However, even with the submission of the Certificate of Eligibility, the Japanese consulate may not issue the work visa requested in certain situations, such as when the Japanese company gives up hiring the foreign citizen or when there is a suspicion of false documents in the request for the Certificate in Japan.
2. Granting of the work visa
Upon approval of the Certificate of Eligibility, the requester of the visa must present it to the Japanese Consulate with jurisdiction over his/her location of residence, along with a series of other personal documents in order to obtain the work visa in his/her passport.
3. Entrance in Japan with a work visa and presentation of the Certificate of Eligibility.
In this occasion, the passport validity, the type of visa (if required) and its expiration, the period of stay, and also the activities to be performed by the foreign citizen in Japan will be checked and compared against the visa presented.
Should everything be compliant with the requirements established by the Japanese laws, an authorization to disembark will be stamped on the foreign citizen's passport, indicating: the date, location of entry in Japan, expiration and residence status of the foreign citizen. The latter information – residence status – determines the activities that the bearer is allowed to perform in Japan.
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The authorization to disembark, and not the visa, will be the legal base for the foreign citizen's stay in Japan. Moreover, the authorization to disembark will also serve as the base for all changes that may be necessary to that visa and the foreign citizen's stay in Japan.
The work visa does not guarantee the authorization to disembark. After the authorization to disembark is granted, the visa will become invalid, except for visas of multiple entries, which will remain valid until their expiration date.
4. Requesting an Returning Authorization
Should the foreign citizen have to make international trips during the valid period of his/her work visa, he/she must obtain an Returning Authorization from the Japanese government.
Should a foreign citizen residing in Japan leave the country without requesting such Returning Authorization, he/she will lose his/her resident status and will have to restart the entire procedure to obtain the work visa.
5. Requesting the “foreign citizen's registration card”
After the foreign citizen enters Japan with his/her work visa, he/she must request the “foreign citizen's registration card”, which must be done within 90 days from the date of arrival in Japan.
All changes made to the conditions initially presented to the Japanese government must be approved by the Japanese immigration authorities.
For this reason, if a foreign citizen in Japan has his/her activities modified or needs to work for another employer, he/she will have to request previous authorization to the Japanese authorities and this may imply a change in the foreign citizen's residence status.
The work visa is usually valid for the period of one (01) to three (03) years, and this period is renewable.
Dependents
Dependents are the spouse and unmarried children under the age of twenty-one (21).
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Prohibition of work to dependents
The dependents of a foreign citizen bearing a work visa are forbidden to exercise any work activity in Japan. To do so, they must obtain a previous and appropriate authorization to work.
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CHAPTER 6 – JAPAN – MAIN INFRACTIONS AND PENALTIES
General comments
If illegal work is verified, the penalty to the employee may be up to three (03) years in prison and/or a penalty of up to three (03) million yens, with no prejudice to deportation and prohibition to re-enter Japan for a period of up to five (05) years.
In this case, the employer may also be punished with up to three (03) years in prison and/or a penalty of up to three (03) million yens.
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APPENDIX A
STATISTICS OF THE MINISTRY OF LABOR AND EMPLOYMENT
* Updated up to December 31, 2008.
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PERMITS GRANTED TO FOREIGN CITIZENS PER COUNTRY OF ORIGIN FROM 2004 TO 2008 THE 15 TOP RATED IN 2008
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* Updated up to December 31, 2008.
2008
5799
4825
3874
2422
1981
1815
1804
1613
1413
1356
1133
990
917
904
775
31621
43993*
2007
4519
2120
2474
1078
1292
1292
1244
1377
1382
267
878
790
903
401
395
20412
29488
2006
3601
1542
2199
717
766
1553
1278
1210
1099
126
655
618
702
354
325
16745
25440
2005
4080
1350
1871
913
570
1512
1098
1024
1152
163
617
612
580
373
285
16200
24158
2004
3527
1087
2070
872
561
822
669
993
945
56
501
764
411
321
281
13880
20162
UNITEDKINGDOM
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COUNTRIES THAT SENT THE MOST FOREIGN CITIZENS IN 200810 TOP RANKED
(*) We emphasize the performance of the Philippines in view of the large number of crew members from this country in tourism vessels in Brazil.
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APPENDIX B
Foreign citizens registered in Japan per country of origin
* Source: http://www.ipss.go.jp/p-info/e/psj2008/PSJ2008-10.pdf EN
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1.915.030
1.556.133
1996 1.415.136 657.159 234.264 201.796 84.509 37.099 44.168 18.187
1997 1.482.707 645.373 252.164 233.254 93.265 40.394 43.690 20.669
1998 1.512.116 638.828 272.230 222.217 105.308 41.317 42.774 25.253
1999
636.548 224.299 115.685
42.773 42.802 29.289
2000 1.686.44 635.269 335.575 254.394 144.871 46.171 44.856 29.289
2001
1.778.462 632.405 381.225 265.962 156.667
50.052 46.244 31.685
2002
1.851.758 625.422 424.282 268.332 169.359
51.772 47.970 33.736
2003
613.791 462.396 274.700 185.237
53.649 47.836 34.825
2004
1.973.747 607.419 487.570 286.557 199.394
55.750
48.844 36.347
2005
2.011.555 598.687 519.561 302.060 187.261
57.728
49.390 37.703
2006
2.084.919 598.219 560.741 312.979 193.488
58.721
51.321 39.618
Year Total Korea China Brazil Philippines Peru USA Thailand
294.201
GRAPHIC OF THE FOREIGN CITIZENS REGISTERED IN JAPAN PER COUNTRY OF ORIGIN
* Source: http://www.ipss.go.jp/p-info/e/psj2008/PSJ2008-10.pdf
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