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I'm planning on going to Germany. I'm in a Schengen country awaiting a residency permit which is accepted but not issued and won't be for months due to needing to apostille the background check.

If I wait for the permit to be issued, it's backdated from the time of application and therefore I have not overstayed schengen.

This country has a law allowing me to stay indefinitely while the application is in process.

But since it is in Schengen, I've been waiting for months and if I left, technically I've been in Schengen for more than 90 days, and don't have the residence permit yet.

Germany has a law that it looks like as a US citizen, I can stay visa-free up to 90 days. If this means Schengen doesn't apply, then I can go immediately.

But I have to get there. If I take the bus, there are no border checks within Schengen, and I will save hundreds of dollars. I'm not going to risk it if it's not technically legal though. I not going to risk a ban over a few hundred dollars.

If I fly, I will have to pay a lot of money due to my luggage and much higher cost of the flight versus a bus. My luggage is only a few dollars to take on the bus. It's hundreds on the flight and Ill have to throw away things to lighten it.

So I'm wondering if even the simple transit through another Schengen country if I took the bus would constitute overstaying since I don't have the residence permit yet, even though I'm in this country legally and still had time left on Schengen when I put my application in?

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  • "If this means Schengen doesn't apply, then I can go immediately": it doesn't mean that. The German 90 days is not separate from the Schengen 90 days. There's no difference whether you fly or take a bus.
    – phoog
    Mar 9 at 1:27
  • Again, someone is saying the opposite of what others are saying. I've received so many opposite answers that I can't trust anything anyone says that isn't from the German government.
    – traveladdict
    Mar 9 at 5:25
  • What source do you have that suggests that Germany allows 90 days separately from the Schengen 90 days? There are some countries that have bilateral agreements with this effect (for example, Poland has such an agreement applying to US citizens), but Germany is not among them as far as I know. (Have you considered applying for a German D visa at a German consulate in Croatia? It might not be possible before your residence permit is issued, or at all for US citizens, but if it is possible it will let you travel there as soon as it is issued.)
    – phoog
    Mar 9 at 8:56
  • It's possible to read section 41 of the Aufenthaltsverordnung as permitting entry when the Schengen days are exhausted, provided that you are planning to apply for a German residence permit. Indeed, on its face, it does seem to be a separate 90 days, but I do not know whether the German authorities interpret it that way. If I were you, I'd want to be sure of that before planning to rely on it.
    – phoog
    Mar 9 at 9:17
  • I confirmed the answer is YES according to § 41(1). BUT -- it could cause problems and could get in trouble if the German police do not know or are not willing to consider this. The German immigration employee said they were instructed to tell people that they should not go by that, because it could cause confusion and get in trouble. So they said yes, technically it can be ok, but if you are in Germany without documents, you could get in trouble, even though the law technically does say that. It is better to apply outside Germany.
    – traveladdict
    Mar 9 at 12:38

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Note: this answer applies only to citizens of countries who do not need a (Type C) Schengen Visa to enter the Schengen Area and are allowed to apply for a residence permit inside the country in question.

For the time starting at the residence permit application, your stay is based on that countries national law (the Schengen 90 day rule does not apply during that period while inside that country).

I entered before this country was Schengen, ...

If Croatia (assumed based on a comment made elsewhere) is the country in question and you entered before the 1st of January 2023, then the time in Croatia before the 1st of January also does not count (you left, what was then, the Schengen Area).

If you applied for the residence permit on the 15th of December 2022, then the time after the 1st of January 2023 also does not count since you were in Croatia under national law when Croatia became part of the Schengen Area.

Also, if you entered Croatia on the 1st of December 2022 and was granted the standard Croatian 90 days in Croatia, that period would end around the 1st of March. You would then have a Schengen exit stamp and a Croatian national entry stamp. The last day that counts for the Schengen 90 days would be the date of the Schengen exit stamp.

This country has a law allowing me to stay indefinitely while the application is in process.

The date of that application will be used as the 'exit' stamp replacement, the date upon entry to another Schengen country will be the new 'entry' stamp date (assuming that anyone makes the effort to check) for the day count calculation.

When that result is under 90 days, then it will not be considered an overstay.

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  • "If you applied for the residence permit on the 15th of December 2022, then the time after the 1st of January 2023 also does not count since you were in Croatia under national law when Croatia became part of the Schengen Area.": On what do you base this conclusion? It looks wrong to me.
    – phoog
    Mar 9 at 1:30
  • @phoog Because the national law allows you to stay until a final decision on the residence permit has been made.
    – Mark Johnson
    Mar 9 at 5:23
  • @phoog Also, if the OP entered Croatia in December 2022 and was granted the standard Croatian 90 days in Croatia, that period would end around the 1st of March. The OP would have a Schengen exit stamp and a Croatian national entry stamp. The last day that counts for the Schengen 90 days would be the date of the Schengen exit stamp.
    – Mark Johnson
    Mar 9 at 5:24
  • "Because the national law allows you to stay until a final decision on the residence permit has been made": but that doesn't mean that the submission of the application stops the 90-day clock. By analogy, look at the way bilateral agreements work. A US citizen can stay in e.g. Poland even after the 90 Schengen days are used up (in other Schengen countries) because of a bilateral agreement. So it's possible to go to Germany for 90 days and then Poland for 90 days, where the time in Poland is authorized by national law. But the time in Poland also uses up Schengen days if they're (continued)...
    – phoog
    Mar 9 at 9:02
  • ... not yet exhausted, so a US citizen can't go to Poland for 90 days and then to Germany. I suspect that OP is correct that the 90 Schengen days are exhausted and it will be necessary either to wait for the residence permit or to leave the Schengen area for 90 days before going to Germany.
    – phoog
    Mar 9 at 9:02

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