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My mother is a Sri Lankan citizen and she is currently in Italy on tourist visa valid from January 1, 2015 to February 28, 2015. She applied for family reunion (while in Italy on tourist visa) documents from Italy this February 15th waiting for approval. Both my brother and sister live in Italy and my mom applied through my sisters for family reunion. This is not about whether she gets the family reunion approval, but about her stay validity with tourist visa till she gets her approval.

Her Schengen tourist visa is valid only for 2 months and I heard when entering there's 90 day period that she can stay in Italy (which means she can stay till April 1st?). If this 90 day period is over, is she overstaying? She applied for family reunion can she wait till she gets those family reunion documents and to apply for family reunion while she stays there in Italy?

  • Family reunion is a suspensive app, but this appears off topic because suspensive applications are not about travel. – Gayot Fow Feb 25 '15 at 16:14
  • I can understand. But actually this is about the validity of her tourist visa if there's another application pending. If she stays more than 2 months does she overstaying or does she get automatic 3 months stay when entering Schengen zone? Also if she overstay beyond 90 days waiting for other application does this make her illegal immigrant? Thanks for your help – OpenMaze Feb 25 '15 at 16:17
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As long as you remain within the Schengen area, the validity of the Schengen short-stay visa depends on two things:

  • The maximum duration of stay
  • The validity duration

If either of them are exhausted, the visa is not valid anymore. For long-duration visas, the maximum duration of stay should be 90 days (that's why you read about those 90 days) but if your visa has a shorter maximum stay then it takes precedence (this would be indicated on the visa sticker itself). Similarly, after the end of the validity period, the visa is not valid anymore even if you haven't used up all the allowed days.

You do not automatically get 90 days on entry in the Schengen area if your visa does not provide for it. In fact, you do not get anything on entry, unlike in, say, the US. The maximum allowed duration of a short stay in the Schengen area is entirely determined by the visa itself, not by a border guard's decision and cannot in any event extend beyond the end of the validity period of the visa (another major difference with US visas).

Depending on the status of the sponsor and the specifics of the situation, applying for a family reunion visa/permit might or might not be possible from within the country, depending on local law. Usually, when allowed, such an application would suspend any obligation to leave/allow you to wait for the application to be processed but that's also a matter for local law, unrelated to the Schengen regulations. I don't know about Italy specifically but you can't assume that your mother is allowed to stay, certainly not on the basis of the Schengen short-stay visa.

  • Thanks a lot for the answer. Right now, I don't know exactly who should I ask. We talked to Italy consulate at Sri Lanka, but even they don't know the specifics about staying while another application pending – OpenMaze Feb 25 '15 at 16:45
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    @Sam An Italian lawyer or perhaps a migrant support group might be able to help. But you would want a lawyer familiar with immigration law, not all of them are very competent and I have no idea how to go about finding one in Italy. Technically, the question would also be on-topic on the expats sister site but it's only beginning and I doubt you will find an expert in Italian law there. – Relaxed Feb 25 '15 at 16:47
  • Yes. Thanks for the suggestion. My brother in Itlay going to check with an immigration lawyer and see what exactly is the situation here. If I hear something I'll make sure to come back and update. – OpenMaze Feb 25 '15 at 16:59
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    @Relaxed, are you sure? I would expect that a family reunion application stops the clock until a decision is reached. – Gayot Fow Feb 25 '15 at 17:00
  • @GayotFow Well, I don't know the law in all countries of the Schengen area so I am hedging a bit. When allowed, I would think it does but my main point is that it's really unrelated to Schengen. There are definitely countries (say France) where having entered on the wrong type of visa precludes any successful application (at least for the family of French citizens and third-country citizens, not sure about the family of other EU citizens). Still, I guess you would still get a récépissé and be allowed to wait for the (inevitable) refusal in the country. – Relaxed Feb 25 '15 at 17:03

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