Visa-Free Entry to Germany
According to § 5 para. 2 no. 1 German Residence Act, the applicant must have entered the country with a visa in order to be granted a residence permit or an EU Blue Card. This can, for example, be a Schengen Visa for stays of up to 90 days. However, the EU Visa Regulation (2018/1806) has drawn up a list of third countries whose nationals are exempt from the requirement to be in possession of a visa when crossing the external borders of the Member States for stays not exceeding 90 days per period of 180 days. Among many others, this list includes the citizens of Andorra, Australia, Canada, Israel, Japan, the Republic of Korea, Monaco, New Zealand, San Marino and the United States of America. You will also be subject to special requirements for the granting of a residence permit for employment, which we will explain in the following.
The EU Visa Regulation (2018/1806) thus provides an exception to the requirement to enter Germany with a visa in accordance with § 5 (2) No. 1 German Residence Act. Thus, the possibility of obtaining a residence permit even after visa-free entry to Germany is not excluded from the outset.
Residence Permit for Long-Term Employment
A residence permit is required for long-term employment. Visa-free entry to Germany therefore does not automatically grant a work permit, nor does entry with a Schengen Visa. Furthermore, a residence permit only entitles the holder to pursue gainful employment if this is stipulated in the German Residence Act or if the residence permit expressly permits this. Residence permits that include a work permit are among others:
As a rule, such a residence permit for the exercise of gainful employment must be applied for before entering Germany, so that the necessary requirements of the respective residence title must also be fulfilled before entry. Accordingly, embassies and consulates-general are responsible for issuing them. According to the guidelines of the Federal Employment Agency, nationals of the following privileged states can also obtain a residence title from the German immigration authorities only after entering Germany
- Republic of Korea
- New Zealand
For example, it is possible for them to travel to Germany without a visa for a job interview and then obtain the necessary residence permit for employment upon receipt of the job offer.
General Requirements for the Residence Permit for Employment
The conditions for granting a residence permit for employment may vary, in particular when applying for an EU Blue Card. For a general work permit in accordance with §§ 18, 18a, 18b German Residence Act, however, it is in any case necessary that the professional qualification or university degree is recognised or equivalent in Germany. Furthermore, there must be a concrete job offer for the field of activity that the qualification or university degree enables the applicant to pursue. If necessary, a professional permit must also be obtained.
Approval of the Federal Employment Agency
In addition, the approval of the Federal Employment Agency must always be obtained when applying for a residence permit for the purpose of employment pursuant to §§ 18, 18a, 18b German Residence Act. The granting of consent is regulated in § 39 German Residence Act and the provisions of the Employment Regulation and is granted if no suitable German or EU employees are available for the employment position. This procedure is called priority review. In addition, the Federal Employment Agency examines whether the foreign employees are employed under the same working conditions as comparable German employees.
Some specific occupational groups are exempt from the approval requirement, such as salaried managing directors, senior managers or scientific personnel. The application for an EU Blue Card for highly qualified employees is also not dependent on the approval of the Federal Employment Agency. In addition, § 26 (1) BeschV stipulates for privileged third-country nationals from Andorra, Australia, Israel, Japan, Canada, the Republic of Korea, Monaco, New Zealand, San Marino and the United States of America that consent for employment can be given regardless of the employer’s registered office. This is intended to simplify the procedure for employees of these nationalities who enter the territory of the Federal Republic of Germany in order to continue their activities there which they already carry out in their country of origin. It is also no longer necessary to provide proof of the job offer within the scope of the application procedure.
If, as a result, the approval of the Federal Employment Agency is required for the application for a residence permit for the purpose of employment, the employer can also apply for this in advance at the Central Placement Office for Foreign Nationals and Professionals (ZAV). This ensures that the application procedure, which can take several weeks or months, is completed in good time before the 90-day deadline.
Our Immigration and Residence Permits lawyers at Schlun and Elseven will help you with your individual decision on your stay in Germany. With the necessary expertise and experience, they will advise you on all questions regarding a work permit in Germany, take care of the communication with the aliens’ registration office and accompany you throughout the entire procedure.
Residence Permit after Visa-Free Entry to Germany without Application Procedure
There is a special provision in German residence law which allows the granting of a residence permit without having to follow the formal procedure before entry. According to § 39 No. 3 AufenthV, an applicant can obtain a residence permit if he or she is a citizen of a state listed in Annex II of the EU Visa Regulation (2018/1806) and is legally resident in Germany. This exceptional provision is strictly limited to cases in which a legal entitlement to residence exists, i.e. the competent authority no longer has any scope for decision. However, the conditions for the legal entitlement may only be fulfilled after entry.
Family reunification in accordance with §§ 27 ff. AufenthV is regarded as a residence title that can be asserted in accordance with § 39 No. 3 AufenthV, in particular the subsequent immigration of spouses, and the issue of an EU Blue Card in accordance with § 18b Para. 2 German Residence Act. This gives third-country nationals from the countries privileged under Annex II of the EU Visa Regulation (2018/1806) the same opportunities to obtain an exceptional residence title without a formal procedure as third-country nationals who entered Germany with a Schengen visa.
Apart from other prerequisites (we have described these in more detail in the corresponding article on the right of residence with a Schengen visa), the conditions for granting the respective residence title (family reunion, spouse reunion, EU Blue Card) must have arisen after entry into the Federal Republic of Germany. The German courts sometimes still hold different views on whether all special conditions for granting a residence title may only be fulfilled after entry or whether this only applies to the central feature of the respective entitlement norm, such as marriage in the case of the subsequent immigration of spouses. In any case, the Federal Administrative Court has decided that a marriage in the Schengen area with subsequent entry to Germany is not sufficient for this purpose, but that the granting of the residence title is rather decisively dependent on the fact that the marriage was performed in Germany (see judgment of 11 February 2011 – 1 C 23.09).
Ultimately, obtaining a residence permit via the exceptional provision of § 39 no. 3 AufenthV after entry offers a possibility to avoid the lengthy application procedure and should be considered in any case.
Representation in Immigration and Residence Law
In order to successfully master the application for a desired residence permit after visa-free entry to Germany in the normal application procedure or via the exceptional provision of § 39 No. 3 AufenthV, the law firm Schlun und Elseven offers you competent advice on all questions. Our qualified lawyers in the field of foreigners and residence law have many years of experience with applications, procedures and negotiations at the foreigners’ registration office and will of course represent you in and out of court if the required residence permit is refused. 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. We also offer our clients our services in English and German for smooth communication.