Valid Schengen Visa
The basic requirement is first of all that the claimant can present a valid Schengen visa. A visa is required to enter Germany for third-country nationals if they are not citizens of EU states or other states for which a visa requirement has been lifted. Embassies and consulates are responsible for issuing Schengen Visas. The local authority, on the other hand, depends on the destination country of the Schengen area in which they wish to enter and how its foreign mission is regulated in their place of residence.
If you want to visit Germany only during your stay in the Schengen Zone, you must submit an application to the German embassy in your country of residence. If you plan to enter more than two Schengen countries, you must submit the application to the embassy in whose country you spend most days. In the case of stays of the same length in the different countries, the application should be submitted to the embassy in whose country you are first entering. The Schengen visa can be applied for, in particular for short-term stays of up to 90 days. The application can be submitted up to six months and a maximum of 15 days before the planned trip, although the processing time is usually up to 14 working days before a decision is made on the application.
If you then travel to Germany with a valid Schengen Visa and circumstances arise there which hold out the prospect of a long-term right of residence being granted, such as marriage to a German citizen or a binding promise of employment, an application for a residence permit must be submitted to the competent immigration authorities.
The valid Schengen visa must be valid for the entire duration of the application, i.e. from the submission of the application to the granting of the exceptional residence permit according to § 39 No. 3 AufenthV. Please note that a provisional effect of § 81 German Residence Act does not apply to stays with a Schengen visa. This means that the visa does not continue to have a provisional effect during the application for a residence title or that the applicant’s stay is deemed to be permitted until the foreigners’ authority reaches a decision.
Other Basic Requirements for Converting a Schengen Visa to Residence Permit
In addition to the valid Schengen Visa, the exceptional provision of § 39 No. 3 AufenthV stipulates the following additional requirements which must be observed for the application:
- The prerequisites for a claim to the granting of a special residence title must have arisen after entry into Germany. This refers to the prerequisites that must normally be fulfilled for the granting of a residence permit for family reunion, in particular for the reunion of spouses or the application for an EU Blue Card before entry. This depends on the requirements of the respective purpose-related residence title.
- In addition, the four regular conditions for granting a residence permit according to § 5 (1) German Residence Act also apply. According to these conditions, livelihood must be secured (No. 1) and the identity and nationality of the claimant must be clarified (No. 1a), there must be no interest in expulsion (No. 2), other interests of the Federal Republic of Germany must not be impaired or endangered by the stay (No. 3) and the claimant must be able to present a recognised and valid passport, passport replacement or identity card replacement in accordance with § 3 German Residence Act(No. 4).
- The visa regulations according to § 5 paragraph 2 German Residence Act are superseded by the exemption regulations of § 39 AufenthV and therefore do not have to be observed.
- No exclusion: The privilege of § 39 No. 3 AufenthV is excluded if a permanent residence intended from the beginning was sought in circumvention of the national visa regulations, especially if the conditions for granting the visa were already fulfilled before entry with the Schengen visa.
Although there are a large number of requirements that must be observed when converting a Schengen visa to residence permit via § 39 No. 3 AufenthV, you still have the basic possibility of a corresponding claim for granting. The most important requirement that you should take into account is that the requirements for one of the above-mentioned purpose-related residence titles only apply after entry.
In any case, our experienced lawyers for immigration and residence law can help you to assess your personal situation and provide you with the necessary expertise. They will take care of the communication with the immigration registration office and accompany you throughout the entire procedure.
The EU Blue Card: Converting Schengen Visa to Residence Permit
The EU Blue Card as a residence title is also a legal entitlement in § 18b German Residence Act, so that the exceptional provision in § 39 no. 3 AufenthV can also apply to it. Thus, if a foreigner with a Schengen visa travels to Germany and receives an employment contract or a binding promise of employment there with a completed, equivalent university degree that allows employment in accordance with his or her qualifications, the EU Blue Card can be applied for as a right of residence following a Schengen Visa. In addition, proof of an annual minimum gross salary of 55,200 euros must be provided, although exceptions to this requirement are also possible. See our page on the EU Blue Card to find out more.
Representation in Immigration and Residence Law
For the application of a residence permit according to the exception rule of § 39 No. 3 AufenthV following a stay with a Schengen visa, the law firm Schlun und Elseven offers you professional and knowledgeable support during the entire procedure. Our qualified lawyers have many years of experience with applications, procedures and negotiations at the immigration authorities and will of course represent you even if the required residence permit is refused. If you want to find out more about extending a stay in Germany using the means above, please contact us directly.
With offices in Cologne, Aachen and Düsseldorf and conference rooms in Hamburg, Stuttgart, Munich, Berlin and Frankfurt, you can take advantage of our support and advice throughout Germany. In addition, we offer our services in English as well as German for smooth communication. Contact us today using the contact form below.