Portugal has been establishing itself more and more as an attractive country for immigrants from different countries. With broad legislation and constant changes to facilitate both the migratory flow and reduce bureaucracy in the system, the number of foreigners in the country continues to grow, as announced annually by the Foreigners and Borders Service.
First, let's clarify the difference between Visa and Residence Permit, concepts used by the Foreigners Legislation, Law n.º 23/2007, of July 4th, recently amended by Law n.º 18/2022, of August 25th. The visa is an authorization to enter the country, therefore it is given abroad, at consular posts, or before entry, while the Residence Permit (whether temporary or permanent) is granted in Portuguese territory and materialized through the issuance of the residence permit, which is nothing more than an identification card for foreigners.
Thus, the Foreigners Law establishes four main types of visas for entry into Portuguese territory, according to article 45 of that law:
- Short-stay visa
- Temporary Stay Visa
- Residence Visa.
- Visa for Job Search (inserted in the last and recent amendment)
The difference between the types above resides especially in the intended duration in Portuguese territory, in addition to the specific purposes mentioned in the legislation.
At first, we will deal with the most recent Visa for Job Search, inserted in art. 57º A, which has generated great interest. The visa is issued abroad, at the Consular Office of Portugal and allows the applicant to enter and stay for 120 days, which may be extended for a further 60 days, provided the holder has a return ticket, in accordance with art. 52, 2, of the law.
This visa authorizes its holder to carry out a dependent work activity, that is, with an employment contract, until the visa expires or until the residence permit is granted; The applicant will already leave with a scheduled date at the SEF for the granting of the residence permit, in which he must demonstrate the constitution and formalization of the employment relationship in that period, and must demonstrate that he meets the minimum general conditions for its granting, especially the minimum foreseen into law for livelihoods in the country.
At the end of the maximum period of validity of the visa for looking for work without the employment relationship having been established and the subsequent documental regularization process having started, the visa holder must leave the country and can only reapply for a new visa for this purpose, one year after the expiry of the validity of the previous visa.
This visa does not give the right to family reunification concomitant with the application, only after obtaining the residence permit in the country will you be able to make this request, fulfilling the legal conditions.
The short-term visa, provided for in article 51 of the Foreigners' Law, is used for purposes of transit, tourism and visiting or accompanying family members who are holders of a temporary stay visa, and the duration of an uninterrupted stay or the total duration of successive stays exceeds 90 days in every 180 days from the date of the first crossing of an external border.
The temporary stay visa, provided for in art. 54 of the law, is intended to allow entry and stay in national territory for a period of less than one year for:
a) Medical treatment in official or officially recognized health establishments;
b) Transfer of national citizens of States parties to the World Trade Organization, in the context of providing services or carrying out professional training in Portuguese territory;
c) Exercise in national territory of an independent professional activity;
d) Exercise in national territory of a scientific research activity in research centres, of a teaching activity in a higher education establishment or of a highly qualified activity for a period of time of less than one year;
e) Exercise in national territory of an amateur sports activity, certified by the respective federation, provided that the club or sports association is responsible for accommodation and health care;
f) Remain in national territory for periods longer than three months, in exceptional, duly substantiated cases, namely to attend a study program at an educational establishment, student exchange, unpaid professional internship or volunteer work, for a duration equal to or less than one year, or for the purpose of complying with international commitments within the scope of the World Trade Organization and those resulting from international conventions and agreements to which Portugal is a Party, in terms of freedom to provide services;
g) Accompaniment of a family member undergoing medical treatment under the terms of paragraph a);
h) Accompaniment of a family member holding a temporary stay visa, unless
the purpose of this is to carry out seasonal work, without prejudice to the family reunification regime provided for in this law; (Included by recent change)
i) Exercise of subordinate or independent professional activity, provided, remotely, to a natural or legal person with domicile or headquarters outside the national territory; (Included by recent change)
j) Seasonal work for more than 90 days;
k) Attendance at a teaching or professional training establishment.
The residence visa, according to art. 58 of the Foreigners Law, is intended to allow its holder to enter Portuguese territory in order to apply for a temporary residence permit, for periods longer than one year, for the following purposes:
a) Residence visa for carrying out a subordinate professional activity;
b) Residence visa for the exercise of independent professional activity or for entrepreneurial immigrants;
c) Residence visa for teaching, highly qualified or cultural activities;
d) Residence visa for highly qualified activity carried out by a subordinate worker;
e) Residence visa for research, study, exchange of secondary education students, internship and volunteering;
f) Residence visa for the purposes of family reunification;
g) Visa for income holders.
Once the residence visa has been obtained, the holder has 120 days to enter Portuguese territory, and the interview has already been scheduled at the Foreigners and Borders Service for personal attendance in order to resubmit the documentation, collect the signature, fingerprints and photo for the preparation of the Residence card.
It is important to clarify that the recent changes had a great impact on the residence visa for the exercise of subordinate activity (work visa), revoking the provisions that determined a limitation on its granting. Currently, it is sufficient for the applicant to hold an employment contract or promise an employment contract; or have recognized and appropriate qualifications, skills or qualifications for the exercise of one of the activities covered by the previous number and benefit from an individual expression of interest by the employer.
It should be mentioned that in some specific cases the Law admits that a Residence Permit can be obtained directly with the visa waiver, such as for students or highly qualified workers or for parents who exercise parental responsibility for minors in Portuguese territory with Portuguese/European nationality or who have a residence permit here.
Also the ARI – Residence Permit for Investment Purposes, known as “Golden Visa” is included in this type of visa waiver.
In the latest amendments to the Legislation on Foreigners, the possibility of waiving a visa was created for subordinate or independent workers who were in Portuguese territory irregularly, but had entered legally (even with a tourist visa), however this specific modality can only be proposal through the SAPA portal – for the so-called “Manifestação de Interesse”, which are currently taking two years to complete.
Within the scope of the Highly Qualified Activity, provided for in art. 90 of the Foreigners Law, and art. 61º A of the Regulation (REPSAE), a visa may be granted in the following cases:
"a) Holds a valid employment contract or promise of an employment contract for at least one year, which corresponds to an annual remuneration of at least 1.5 times the national average gross annual salary or three times the index value of social support (IAS);
b) In the case of a regulated profession, hold high professional qualifications, duly proven in compliance with the provisions of Law No. and exercise of the profession indicated in the employment contract or promise of employment contract;
c) In the case of a non-regulated profession, hold high professional qualifications appropriate to the activity or sector specified in the employment contract or promise of employment contract.
2 — For the purposes of employment in professions belonging to large groups 1 and 2[1] of the International Type Classification (CITP), indicated by Resolution of the Council of Ministers, upon prior opinion of the Permanent Commission for Social Dialogue, as professions particularly in need of workers Third-country nationals, the salary threshold provided for in subparagraph a) of paragraph 1 must correspond to at least 1.2 times the national average gross salary, or twice the value of the IAS."
When there is doubt as to the framework of the activity and for the purpose of verifying the suitability of the third-country national's professional experience, the ministries responsible for the areas of employment and education and science issue an opinion prior to the granting of the visa.
We also have Ordinance 328/2018[2], which deals with the Certification of Companies by IAPMEI, through an electronic form on the online platform created for this purpose, and the requirements for hiring:
Eligibility requirements for highly skilled workers
“The certified company, when issuing the term of responsibility necessary for the presentation of the application for a residence visa or residence permit, must ensure that highly qualified workers meet the following requirements:
a) Be a citizen of a third country and not reside permanently in the European Union;
b) Have the contributory situation regularized before the tax and social security administration, when applicable;
c) Have no criminal record;
d) Be at least 18 years of age.
2 - Highly qualified workers must also:
a) Carry out a highly qualified activity demonstrated by fulfilling one of the following requirements:
i) Possess a minimum qualification level of level 6 in accordance with ISCED-2011;
ii) In the case of workers with a qualification level 5, higher professional technical course, in accordance with ISCED-2011, they must demonstrate exceptional specialized technical skills, obtained through a minimum experience of 5 years.
iii) (Revoked.)
b) Formalize an employment or service contract with the employer with a minimum duration of 12 months with a minimum annual salary equivalent to 2.5 times the IAS;
c) Possess command of the Portuguese, English, French or Spanish language appropriate to the functions to be performed.”
Another relevant change is the creation of a specific residence visa for carrying out a professional activity remotely outside the national territory, or a visa for digital nomads, inserted in art. 61º-B of the Foreigners Law.
This type of residence visa is granted to subordinate workers and independent professionals for the exercise of professional activity provided, remotely, to natural or legal persons with domicile or headquarters outside the national territory, and the employment relationship or the provision of work must be demonstrated. services, as the case may be.
Finally, it should be mentioned that in the latest and recent amendment to the Foreigners' Law, special conditions were created for granting visas to nationals of member states of the Community of Portuguese Speaking Countries – CPLP.
In addition to the prediction of the Mobility Agreement between the member countries, which translates into the lack of prior administrative authorization for the granting of the short-term visa (tourism), in the granting of residence visas, the legislation for foreigners now provides in art. 52º A, which is waived the previous opinion of the SEF and directly consulted its databases.
Furthermore, citizens who are already in Portugal may be granted a temporary residence permit for more than 90 days and less than one year, provided they have a short-term visa or regular entry into Portuguese territory, pursuant to art. 75, 2 of the Law.
A CPLP Residence Permit was also specifically created, based on art. 87º-A of the Foreigners’ Law, as provided for in the Mobility Agreement, and are exempt from paying fees and charges due on the issuance and renewal of residence permits, with the exception of the costs of issuing documents, as was already the case with citizens of the Brazil, pursuant to the Treaty of Friendship.
Other altered procedures were the possibility of concurrently scheduling family reunification together with the holder's residence permit, including requests for expression of interest, pursuant to article 81, 4 and 5 of the Law. Another issue foreseen in the recent amendments is the immediate registration in the Finance, Social Security and Health systems, with the attribution of NIF, NISS and User numbers for holders of residence visas.
Finally, it is important to point out that this specific type of visa and CPLP residence permit, as well as the new visa for looking for work, as they are new categories, may still require regulation, as there is no provision for the necessary documentation (or that will be waived) In these cases.
In this way, it is clearly noted that Portugal has been trying to attract and facilitate legal immigration, with public policies concerned with reducing the bureaucracy of the systems, as already announced and widely publicized by the government.
Finally, it is emphasized that the information in this article is merely informative and does not exempt the consultation of a lawyer for the analysis of a particular case.
[1] https://imigrante.sef.pt/wp-content/uploads/CartaoAzulProfissoesGrandeGrupo2_PT.pdf [2] https://dre.pt/dre/legislacao-consolidada/portaria/2018-121987034-179505074
By Caroline Campos - Lawyer
+351 969504178
www.carolinecamposadvogada.pt
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