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I'm in another Schengen country in the EU waiting for a residence permit. But I changed my plans because now I want to go to Germany to study.

Since I don't have the residence permit yet, I can't travel from this country.

Since I have been waiting, I'm technically still in schengen. But I'm here legally under this country's laws, as I am waiting for the permit.

It will take more months because I need to get documents apostilled from the USA.

The residency permit is backdated to the time of application. But I want to go to Germany now.

I want to apply for a German residency permit that I am eligible for. I cannot go to Germany to get it because I'm in this country. I can apply at the German embassy in this country, because I cannot enter German on a Schengen visa, which I think it counts as expired until my current residency permit goes through, which will take too long.

If I can go to Germany, then I would then cancel the residency permit for this country.

Can I, after applying for the residency permit I'm eligible for, while it is processing, get a Fiktionsbescheinigung and go to Germany immediately?

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  • Are you a US citizen? Mar 6, 2023 at 8:59
  • @NicolasFormichella Yes. I'm a US citizen.
    – travel
    Mar 6, 2023 at 9:03
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    Please add: which country you are presently in and that you are a US citizen to the question. In short: as a US citizen you can apply for a residence permit directly in Germany. While in county X, after you applied for that residence permit the 90 day clock has stopped. Once you leave that country, it will start again. Since you don't require a visa as a US citizen you can go to Germany on your passport alone (take the proof of residence permit application with you). Apply for residence permit on arrival. Mar 6, 2023 at 10:01
  • I spoke with the German embassy, and they told me that I have to apply for the German visa in my home country, or wait for my current residency permit to complete in order to apply in this country. They also told me that if I went directly to Germany, they would not give me a residence permit while in Germany; I would have to return to my home country to retrieve it.
    – travel
    Mar 6, 2023 at 13:28
  • How long exactly have you been waiting for your residence permit application? And did you enter this country using visa waivers or with an actual Schengen visa?
    – Dr. Snoopy
    Mar 6, 2023 at 19:50

1 Answer 1

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Yes. I'm a US citizen

As a US citizen you can apply for a residence permit directly in Germany based on §41(1) AufenthV.

See answer where §41(1) AufenthV is quoted:

You can apply for any type of residence permit.

The 90 day rule does not apply for the time in country X once the application for their residence permit has been made.

Once you leave that country, it will start again.

Since you don't require a Schengen visa (Type C) as a US citizen you can go to Germany on your passport alone (take the proof of residence permit application for country X with you, which is proof that you were in country X based on their national law).

Apply for the German residence permit on arrival.

according to the German embassy, because they said I am NOT considered a resident until I have the actual residence permit, until then I am considered a visitor and must apply from my home country.

The Embassy is correct that you cannot apply for a national visa in country X until you are a resident of country X (i.e. while the application is pending).

But you do not need a national visa (Type D) for Germany due to §41(1) AufenthV.

They also told me that if I went directly to Germany, they would not give me a residence permit while in Germany; I would have to return to my home country to retrieve it.

That information is not correct for citizens of the countries listed in §41 AufenthV.

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  • I think there is a hint ("waiting for months") in the question that the 90 day timer for Schengen visa waiver has expired and that is why this person cannot move inside the Schengen area, and also why they cannot enter Germany to apply for a residence permit, and also why the German authorities will not give them a residence permit either. So your answer is incorrect for this case.
    – Dr. Snoopy
    Mar 6, 2023 at 19:50
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    @Dr.Snoopy National residence laws overrides the Schengen rules. While waiting for the application for the residence permit of country X, the OP is allowed to stay in that country accourding to the national laws of that country (which the OP still hasn't stated). For the other Schengen States it is if the OP is outside of the Schengen Area in as far as the 90 day rule is concerned. Mar 6, 2023 at 22:55
  • @Dr.Snoopy That is why the OP is wrong in believing that he cannot go, with the US passport, to Germany. Also §41(1) AufenthV states explicidly that US citizens can 'enter the federal territory without a visa and stay there. A required residence permit can be obtained in Germany.' That is why you are wrong in stating 'also why the German authorities will not give them a residence permit either.'. Mar 6, 2023 at 22:55
  • That only works if the residence permit is issued, not if its still pending. Even worse if its rejected. Do not forget that Schengen rules are part of national law of EU member states. Also funny to mention national law when the OP has not mentioned in which country they applied for a residence permit.
    – Dr. Snoopy
    Mar 6, 2023 at 23:05
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    The OP is not in Germany, he cannot be issued a Fiktionsbescheinigung outside of Germany. You seem to misunderstand the situation.
    – Dr. Snoopy
    Mar 7, 2023 at 0:33

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