Converting a Schengen Visa to an EU Blue Card in Germany

A short-term stay in Germany can often lead to new personal or professional opportunities that create the desire to remain in Germany for longer than 90 days. In principle, German residence law does not provide for converting a Schengen visa into a residence permit. However, there are special exceptions in which such a conversion may nevertheless be possible.

If you have travelled to Germany on a Schengen visa and would like to acquire a longer-term, purpose-oriented residence title, this article can inform you whether a special exception regulation may exist for your case.

For personal support and a detailed examination of your individual case regarding the right to acquire a residence permit, our lawyers for immigration and residence law at Schlun & Elseven are at your disposal with extensive expertise and many years of experience. We will examine whether the conversion of the Schengen visa into an EU Blue Card or for family reunification, especially for spouse reunification, could be considered.

Application for a Residence Title Following a Schengen Visa

A temporary, purpose-related residence permit, such as an EU Blue Card or one for family reunification, as per Section 27 of the AufenthG, is generally only granted if all the necessary conditions for its issuance are met before entry and the application procedure has been completed.

An exception to the requirement that granting conditions must be met before entry into Germany can be made in the case of a Schengen Visa, according to Section 39 No. 3 AufenthV. According to the exception provision Section 39 No. 3 AufenthV, a foreigner can obtain or have a residence title extended in Germany beyond the cases regulated in the German Residence Act. This is a special provision that was introduced to ensure that residence entitlements whose requirements are already all met do not have to be checked in a formal procedure.

In exceptional cases, where a relevant legal entitlement to residence exists following a Schengen Visa, the competent authority has no scope for decision or discretion. The residence title must therefore be issued on a mandatory basis, so that a subsequently completed formal procedure would be redundant. This exception to staying in Germany with a Schengen Visa, therefore, offers the possibility of avoiding a lengthy visa procedure that is normally required before entry.

Important: This exception does not apply to student residence permits (Section 16b German Residence Act), language course visas (Section 16e), or job-seeking visas (Section 19e). If you wish to obtain one of these residence titles, you must apply from your home country through the proper visa procedure at a German embassy or consulate.

Valid Schengen Visa

The basic requirement is, first of all, that the claimant can present a valid Schengen Visa. Third-country nationals require a visa to enter Germany if they are not citizens of EU states or other states for which the visa requirement has been lifted. Embassies and general consulates are responsible for issuing a Schengen Visa. Local jurisdiction depends on which destination country in the Schengen area you wish to enter and how its foreign mission is regulated in your place of residence.

If you want to visit Germany, as the only Schengen state, you must submit an application to the German embassy in your country of residence. If entry into more than two Schengen countries is planned, the application must be submitted to the embassy in whose country you will spend the most days. In the case of stays of equal length in the various states, the application is made to the embassy in whose country you are entering first. The Schengen Visa can be applied for, particularly 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, with a processing time of up to 14 working days until a decision is made on the application.

If you then enter Germany with a valid Schengen Visa and circumstances arise there that hold out the prospect of granting a long-term right of residence, such as marriage to a German citizen or a binding job offer, an application for a residence permit must be submitted to the competent immigration authority.

The valid Schengen visa must remain valid for the entire duration of the application, i.e., from the date of application submission to the granting of the exceptional residence title, as per Section 39, No. 3 AufenthV. Please note that a provisional effect, as per Section 81 of the AufenthG, does not apply to stays with a Schengen Visa. This means that during the application for a residence title, the visa does not continue to have a provisional effect, nor is the applicant’s stay deemed to be permitted until the immigration authority reaches a decision.

Other Basic Requirements Overview

In addition to the valid Schengen visa, the exception provision of Section 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 requirements that must normally be fulfilled before entry to obtain a residence permit for family reunification, particularly spouse reunification, or to apply for an EU Blue Card. This depends on the requirements of the respective purpose-related residence title.
• In addition, the four regular conditions for granting, as specified in Section 5 (1), sentence 1, of the AufenthG, also apply. According to these, 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 according to Section 3 AufenthG.
• The visa regulations, as per Section 5, paragraph 2, of the AufenthG, are superseded by the exemption provisions of Section 39 AufenthG and therefore do not need to be strictly observed.
• No exclusion: The privilege of Section 39 No. 3 AufenthV is excluded if a permanent residence intended from the beginning was sought in circumvention of the national visa regulations, particularly if the conditions for granting were already met before entry with the Schengen Visa.

Overall, although numerous requirements must be met when converting a Schengen Visa into a residence permit via Section 39, there is nevertheless a fundamental possibility of corresponding entitlement to granting. The most important requirement you should observe is that the conditions for one of the mentioned purpose-related residence titles only arose after entry.

In any case, our experienced lawyers for immigration and residence law can help you assess your personal situation and provide you with the necessary expertise. They will handle communication with the immigration authority and accompany you throughout the entire procedure.

EU Blue Card

The EU Blue Card as a residence title is also established as a legal entitlement in Section 18g German Residence Act, so the exception provision of Section 39 No. 3 AufenthV can also apply to it. If a foreign national with a Schengen Visa travels to Germany and receives an employment contract or a binding job offer, accompanied by a completed, equivalent university degree that allows employment corresponding to their qualifications, they may be eligible to apply for an EU Blue Card as a right of residence following the issuance of a Schengen Visa.

Representation in Immigration and Residence Law

For applying for a residence permit according to the exception rule of Section 39 No. 3 AufenthV following a stay with a Schengen Visa, Schlun und Elseven offers you professional support during the entire procedure. Our qualified lawyers have many years of experience with applications, procedures, and negotiations with the immigration authorities. They will, of course, represent you even if the required residence permit is refused. With offices in Cologne, Aachen, and Düsseldorf and conference rooms in Hamburg, Munich, Berlin, and Frankfurt, you can benefit from our support and advice throughout Germany. Additionally, we provide our services in both English and German to ensure smooth communication with our clients.