Unusual Situation for a Permanent Visa... Need Advice

Hi benevivit,

Sort of confusing your description of the situation NOW. Are you saying that presently you're both in Brazil or both in the USA and the marriage will take place in the USA?

If so, what kind of visa does your future husband presently hold? If he's in the USA on a tourist visa, getting married while there would be an immigrations violation and he'd end up getting banned from entry to the USA for a period of 5 years. I'm not sure of the visa he would need in order to avoid this, but I will check with my sources and get back to you on that.

If you apply for the VIPER in the USA, you'd first have to have the foreign marriage recognized by the Brazilian government. You'd have to take the Marriage Certificate to the Consulado-Geral do Brasil in the city responsible for the city where you reside in the USA. They would have you fill out the necessary forms, provide the necessary proof documents and pay a fee. Then they issue another Marriage Certificate from the Consular Cartório which is valid in Brazil. Applying for the VIPER abroad you couldn't enter Brazil until the visa was actually issued.

If you apply here in Brazil the processing procedure is exactly the same, however if based on marriage then you have the legal right to remain in Brazil until the process is completed and also to obtain a Carteira de Trabalho and work during that time. However, you are only permitted to remain outside of Brazil for periods not exceeding 90 days until the visa is issued. Once you've obtained permanency you can be out of Brazil for up to two years, following that you would lose permanent resident status except under exceptional circumstances like being hospitalized and thus unable to return to Brazil.

Yes, the fact that you would not be living together under the same roof will certainly complicate matters as far as the VIPER is concerned. It's a situation you'd really need to take up with a lawyer experienced in immigration matters. I'm sure if you could prove that this was for medical reasons there would be some way of resolving the problem, but don't count on it being easy.

We have a member @lawyer_rio who may reply to your post with more information, if not please let me know and I will ask some questions with my other sources.

  Cheers, 
  William James Woodward – Brazil Animator, Expat-blog Team

Hi,

Sorry I wrote things in a confusing way.  We are both in Brazil right now, me irregularly because of a visa issue.  We will travel together to the USA to marry.  I will stay in the USA, he'll come back here.

I'm told by visa expediting companies in the USA that the Consulate General for the state we are marrying in will legalize the marriage certificate as part of the VIPER application process.  Do you think that's wrong?  They tell me I need to stay in the USA for 4 months while the consulate approves my visa, and they will be holding my passport during this time.

However, this is all irrelevant if the marriage will be invalidated later.  We've already been advised that mental health reasons are never approved, because it calls into doubt the person's ability to have made a decision in the first place.  No one really seems to know, though... not even lawyers.  This seems to be a new one for them.  Hopefully @lawyer_rio will know better, or one of your other sources.

Thank you, again.

The Federal Police does not conduct home visits in the middle of the night. In fact, once you have your permanent visa through the consulate in the US, the only interaction you will have with them is when you register your visa upon arrival and six months later to get your ID card.

After that, the next time will be ten years from now when you have to renew your ID.

The law does not require married people to actually live together.

In your case, it makes sense to apply in the US via the consulate and wait for 4 months because the Federal Police does 1 (one) home visit (office hours), and you just can't tell when. Having the building doorman tell them "no she doesn't live here" would create a huge burocratic hassle.

You really don't need a company to get your visa done for you, it's easy and straight foreward. You'd have to stay in the US, since you have overstayed your visa as I understand.

Hi, laywer_rio, every foreigner I know who has married a Brasilian has had middle-of-the-night visits.  Also, neither one of us lives where there is a doorman... we live in the Floripa area.  Do you have any advice for this situation? 

I've also been told by 5 Brasilian lawyers that the Federal Police will take action against any marriage they believe isn't real, and not living together isn't real to them.

In the USA, you're obligated to make application for the visa in person, and I don't live anywhere near Los Angeles, so it's cheaper to use an expediter.

Benevivit, I have lived here in Brazil for 18 years now and have seen hundreds of foreigners go through the application for permanent residency and I have NEVER heard of the PF do home visits at night. They cannot even execute court orders by night, as that is prohibited by the constitution.

The Federal Police have no jurisdiction, they may only advice (to the Conselho Nacional de Imigração). An any decision to cancel a visa based on a non-existing marriage (fraud) can only be made (even administratively) after the parties have been heard (due process), in which case they have the burdon of proof.

That said, in your case, it would be just much more simple to apply in the US, as the home visit might just be a problem.

Hi benevivit,

No, the recognition of a foreign marriage and VIPER application are two separate and distinct applications at all Brazilian Consulates abroad. You can do them both at the same time because the issuing of the new Marriage Certificate from the Consular Cartório is a speedy process. The visa itself will take 3 months or more to issue. During that time you will not be permitted to enter Brazil. Once the VIPER is issued you have 90 days from issue date to enter Brazil. It will not matter what date you left Brazil, any previous overstay, days accrued since you will be entering on a completely different kind of visa. All those other things apply only to your VITUR Tourist Visa. With the VIPER you are not restricted in any way.

I will check to find out what USA visa your future husband will need, he can't get married in the USA with a Tourist Visa without getting banned from re-entering the USA for 5 years. He needs another kind of visa to avoid this penalty and I will let you know when I've got the information.

Regarding his Bipolar Disorder affecting the validity of the marriage... Is he in possession of all of his faculties? Is he able to make rational, informed decisions for himself? If the answer to those two questions is YES then there should be no legal impediment to marriage whatsoever, not in the USA nor here in Brazil. I'd suggest that it would however be prudent to have a psychiatrist examine him and give you a written report to state that officially. If you've got some kind of medical documentation the Federal Police can't question it.

I've been here in Brazil for over eleven years and I must agree with lawyer_rio, I've NEVER heard of the Federal Police making a home visit at night, nor have I heard of it being unannounced. They will phone about 15 minutes before the visit, but they will let you know they are coming.

  Cheers, 
  William James Woodward – Brazil Animator, Expat-blog Team

Thanks to both of you for answering me.

All I can say is this is like Alice in Wonderland, where everyone says different things.  Not uncommon in Brasil, but especially frustrating now.  I don't even know what to think at this point.  As I told you above, the Brasilian attorneys - several - have agreed with the night-visit idea, too. 

Just for the record, I was told applying in the USA does not change the home visit.  That happens up to 6 months after "registering" with the Federal Police on arrival in Brasil with the papers in hand from the consulate in the USA.  Is there no home visit AT ALL if married in the USA?  I thought the visit was connected to the fact I was getting a visa from the marriage, not directly about the marriage itself, so the place we married didn't matter...

*Let me qualify that I thought the place we married *does*  matter, but not regarding home visits.  I can be immediately deported for applying for a visa after marrying here in Brasil, because I would be marrying here on an expired visa.  We are both legal in the USA.  My fiancé having a tourist visa would only be a problem if we decided to stay in the USA, it's not a problem for Brasil.

Actually no, you can't be deported. If you are able to marry here without showing your present visa, once legally married you could be asked to voluntarily leave, but even that would be unlikely. And if your application for a visa is accepted you're back to being "legal" in Brazil.

Perhaps if you're lucky lawyer_rio will explain to you how some people are able to manage to marry without a current visa. He has told me that it is possible and this might just be the answer to all your problems. In fact, this might end up being less expensive than going back to the USA to marry there, if you can pull it off.

Your fiancee's Tourist Visa would be a problem in the USA, since while he can marry you even with a Tourist Visa, doing so is a violation of immigrations regulations there and he would be subjected to a ban which would prevent him from re-entering the USA for a period of five years. He needs another type of visa in order to marry you and not have that ban applied. I just don't know right now what visa it is.... I have to check. If you both have no plan on him going back to the USA during the next 5 years then it wouldn't be any problem.

  Cheers, 
  William James Woodward – Brazil Animator, Expat-blog Team

The marriage in the USA is set for a month from now, so we won't be changing that no matter what.  I just don't know if I'll be coming back afterward.  Thank you again for all your help.

Hi benevivit,

The type of visa your future husband needs is a K-1 visa, if he can get one issued to replace the normal Tourist Visa before you head back to the USA then he can marry you there and there will not be any further problems with re-entry ban in the US. If you violate the rule it could end up in a ban that could even be permanent, but usually is not. However it may make obtaining a K-3 visa at some later date almost impossible.

See link:

http://www.visapro.com/Immigration-Arti … =1252&z=36

  Cheers, 
  William James Woodward – Brazil Animator, Expat-blog Team

James, for all I know, the problem occurs when you go to the US with the Intent to get married AND the INTENT to stay. That would violate the immigration rules.

If she gets married in the US, he has to go back. If afterwards they want to move to the US they should apply for a visa from outside the US.

lawyer_rio, that was how it was explained to me.

Ok, so you are saying that no one can deport me, but my visa could be cancelled.  I could appeal it through a judicial process which, in Brasil, normally takes years.  In the meantime, I couldn't work legally, right?  No good for me.  I am an independent woman and need to be able to work!

The advice and information keeps changing, but none of it is ever good.

No what I'm saying is, if you manage to get married in Brazil without your visa being current once married, visa or not, you're legal in the country by virtue of the marriage, but in an "irregular" situation with immigrations, which is easy enough to resolve. They really can't deport you from that point on. Even if they tried they would have an extremely difficult time of it.

As far as I understand it, once you are legally married in Brazil regardless of anything else the Federal Police can't refuse to accept your VIPER Permanent Visa application, provided that you have all the necessary supporting documents in order.

When you apply for the VIPER you are automatically entitled to remain in Brazil for however long the process of approval may take. You are also automatically entitled to obtain a Carteira de Trabalho (work permit) and work in Brazil when the application is made based on marriage or on having a Brazilian child.

You are also permitted to leave Brazil for periods up to 90 days and re-enter the country while the process is taking place. Once you get the VIPER that can be for up to 2 years.

  Cheers, 
  William James Woodward – Brazil Animator, Expat-blog Team

Sven, that's right, but my friend who is with US Customs and Border Protection tells me that they would find it almost impossible to prove that he didn't enter with the intent to marry and that CBP views all such marriages as intentional.

He told me that certainly they can marry with just his tourist visa and return to Brazil, but that would certainly result in a ban on re-entering the US for at least 5 years. If they didn't intend to return to the US for that 5 years it would pose no problem, but if they did he'd have a hell of a time getting the required K-3 visa if they tried before the 5 years had lapsed.

  Cheers, 
  William James Woodward – Brazil Animator, Expat-blog Team

benevivit wrote:

lawyer_rio, that was how it was explained to me.

Ok, so you are saying that no one can deport me, but my visa could be cancelled.  I could appeal it through a judicial process which, in Brasil, normally takes years.  In the meantime, I couldn't work legally, right?  No good for me.  I am an independent woman and need to be able to work!

The advice and information keeps changing, but none of it is ever good.

The process of cancelation takes months. They have to prove the marriage is a fraud. While they cancel it you can still work. Even if you loose the administrative process you can appeal to the courts, during which period you can still work.


But that is not going to happen. Once you picked up your RNE (ID card) you won't see the Federal Police untill the day you have to renew the ID, ten years later.

Reallly stop worrying, you will get your visa and it won't be canceled. The federal police have much more important things to worry about that the 500 or so gringos that come to brasil on a permanent visa based on marriage.

As a matter of fact I have a client that had his visa wrongly "canceled" years ago (without due process) because of divorce, however they never told him to leave. He still had his Carteira de Trabalho so he just kept on working, and was afraid to follow the judicial process because his wife left him for her lover who is a federal judge and certainly had something to do with the cancelation of his visa.


@james

This same guy got married without a valid visa, which got canceled (in his pasport!). I told him to get a procuração (which he did) so while he got married he was waiting in the botequim at the corner.

Ah, so it was a Casamento por Procuração, interesting. Didn't he have to show a visa when he applied at the Cartório? Great solution.

No. As I said, they only took the RNE and estamped his passport. Still had his drivers license and carteira de trabalho which are both valid identities.