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Section 41 of the Residence Ordinance: Are US Americans, Britons and Canadians allowed to enter Germany without a visa if they intend to stay permanently?
Why Section 41 of the Residence Ordinance is frequently misunderstood in practice
Section 41 of the German Residence Ordinance (AufenthV) is one of the most important privileges under German residence law. Nevertheless, in legal practice we repeatedly encounter the view that nationals of the United States , the United Kingdom , Canada , or other countries listed in Section 41 Paragraph 1 of the Residence Ordinance may travel to Germany visa-free as tourists, but must apply for a national visa abroad if it is already clear before entry that they intend to live permanently in Germany or take up employment here.
This view is not convincing in our opinion. The wording of Section 41 Paragraph 1 of the Residence Ordinance is unusually clear.
This provision was specifically created to offer certain nationals a different procedure than the majority of other third-country nationals. Those who fall under Section 41 Paragraph 1 of the Residence Ordinance can, in principle, enter Germany without a visa and subsequently apply for the necessary residence permit within the country.
This also applies if the long-term stay was planned before entry.
What Section 41 Paragraph 1 of the Residence Ordinance actually regulates
Section 41 paragraph 1 of the Residence Ordinance lists, among others, nationals of Australia, Israel, Japan, Canada, the Republic of Korea, New Zealand, the United Kingdom and the United States.
The crucial wording is that these persons
"also for a stay that is not a short stay"
They can enter and stay in Germany without a visa.
The required residence permit can then be obtained within Germany .
This wording alone answers a significant part of the discussion. If the legislator explicitly permits a visa-free stay that is not a short stay , the regulation can hardly simultaneously require that the person concerned intends only a short-term tourist stay upon entry.
There is no such restriction in the law.
Section 41 paragraph 3 of the Residence Ordinance supplements the system by stipulating that the required residence permit must generally be applied for within 90 days of entry.
The regulation thus creates an independent procedural privilege under immigration law.
Is it permissible to have a permanent intention to stay even before entering the country?
In our opinion, the answer is clearly yes.
An opposing interpretation would almost completely reverse the wording of Section 41 Paragraph 1 of the Residence Ordinance.
The regulation explicitly permits entry for stays that are not short-term. This covers precisely those cases where it is already clear upon entry that the stay will last longer than 90 days.
The courts have also recognized this.
In its decision of March 26, 2008 – 11 B 730/08, the Administrative Court of Oldenburg expressly emphasized that nationals privileged under Section 41 of the Residence Ordinance can enter visa-free even if a stay of more than three months is intended from the outset.
That is dogmatically consistent.
Section 41 of the Residence Ordinance does not address the question of whether the substantive requirements for the subsequently applied-for residence permit are met. The provision initially only answers the preliminary question of where the residence permit procedure may be conducted .
Section 41 of the Residence Ordinance (AufenthV) does not grant the applicant an entitlement to an EU Blue Card , a residence permit under Section 18a or 18b of the Residence Act (AufenthG) , or any other residence title. However, the applicant does acquire the right to apply for the corresponding residence title, in principle, only after visa-free entry into Germany.
These two questions must be kept clearly separate.
Does the privilege also apply if there is already an intention to acquire the property?
From our point of view, yes as well.
A systematic comparison within Section 41 of the Residence Ordinance is particularly convincing here.
Section 41 paragraph 2 of the Residence Ordinance (AufenthV) grants privileges to other nationals, but expressly contains restrictions regarding the intended employment.
Section 41 Paragraph 1 of the Residence Ordinance does not contain such a restriction.
This is no coincidence.
If the legislator expressly takes into account an intention to acquire in paragraph 2, but refrains from imposing a corresponding restriction in paragraph 1, this strongly argues against subsequently reading such a requirement into paragraph 1 through interpretation.
A US-American software developer who signed an employment contract with a Berlin company before entering Germany does not lose his privileged status under Section 41 Paragraph 1 of the Residence Ordinance solely because of this employment contract.
The same applies to a British manager or a Canadian professional who travels to Germany with the clear intention of working here long-term.
A distinction must be made between the intention to work and the actual commencement of employment.
However, a second legal problem is often conflated with the entry issue at this point.
Section 41 of the Residence Ordinance is not a general work permit.
The regulation allows visa-free entry and subsequent application for a residence permit. However, this does not automatically mean that any employment can be taken up immediately after entry.
Whether a specific employment may already be carried out depends in particular on Section 4a of the Residence Act and the respective existing residence status.
Therefore, two questions must be addressed separately:
First: Is the applicant allowed to enter visa-free if they already have an intention to work?
In our opinion, generally yes.
Secondly: Is he allowed to work immediately after entering the country?
That depends on his specific residence status and the relevant employment regulations.
This distinction is particularly important when advising international professionals. Those who wish to begin working very quickly after arrival may be better advised, despite the possibility offered by Section 41 of the German Residence Ordinance, to apply for a national visa while still abroad.
However, this does not change the legal scope of Section 41 of the Residence Ordinance.
Relationship to Section 5 Paragraph 2 of the Residence Act
Section 5 paragraph 2 of the Residence Act (AufenthG) basically contains the so-called visa requirement.
Subsequently, the granting of a residence permit regularly requires that the foreigner has entered the country with the required visa and has already provided the information relevant for the granting of the permit in the visa application.
This fundamental principle serves to control immigration. The Federal Administrative Court has repeatedly emphasized that the national visa procedure should generally be carried out before entry.
However, Sections 39 et seq. of the Residence Ordinance contain exceptions to this principle.
Section 41 of the Residence Ordinance is such an explicit special regulation .
It would therefore be methodologically incorrect to derive a restriction from the general Section 5 Paragraph 2 of the Residence Act that practically eliminates the more specific regulation of Section 41 of the Residence Ordinance.
The correct system is rather:
In principle, a national visa procedure according to § 5 para. 2 of the Residence Act applies.
Exception or special privilege if the conditions of Section 41 of the Residence Ordinance are met.
What does the case law say?
In addition to the aforementioned Administrative Court of Oldenburg, the general case law of the Federal Administrative Court regarding visa requirements is particularly important.
In its judgment of November 16, 2010 – 1 C 17.09, the Federal Administrative Court clarified that the question of which visa is “necessary” is fundamentally determined by the actual purpose of the stay.
However, this case law specifically concerns cases in which no privilege such as Section 41 Paragraph 1 of the Residence Ordinance applies.
It should therefore not be misunderstood to mean that nationals of countries covered by Section 41 must always apply for a national visa before entering the country if they intend to stay for a long period of time.
On the contrary: precisely because Section 5 Paragraph 2 of the Residence Act normally requires a prior visa application, the special regulation of Section 41 of the Residence Ordinance gains its practical significance.
Administrative court rulings also recognize that Section 41 of the Residence Ordinance creates a genuine privilege for applying for a residence permit within Germany.
Our rating
In our view, the legal situation regarding the intention to stay long-term is very clear.
Anyone who is a national of a state mentioned in Section 41 Paragraph 1 of the Residence Ordinance is generally allowed to enter Germany without a visa, even if it is already clear before entry that they intend to live in Germany for a longer period of time.
Even an existing intention to acquire the property does not, in principle, eliminate this privilege.
We therefore consider it fundamentally unlawful that an administrative practice whereby a US, British or Canadian national is referred to a national visa procedure solely because of their pre-existing long-term intention to stay or work in the country before entry.
The crucial dividing line is not between "tourist" and "immigrant".
Section 41 Paragraph 1 of the Residence Ordinance expressly permits visa-free entry for a stay that is not a short stay .
The far more important boundary lies between the permission to enter and stay on the one hand, and the actual commencement of gainful employment on the other.
Implications for practice
For nationals of the USA , the United Kingdom and Canada , Section 41 of the Residence Ordinance can be a significant advantage.
However, this does not mean that applying domestically is always the best strategic solution.
Immigration authorities can work considerably slower than German diplomatic missions abroad. Furthermore, the question of whether employment is permissible during the ongoing asylum process can cause significant practical problems.
A national visa can therefore be practically useful despite Section 41 of the Residence Ordinance.
However, that is a question of procedural strategy.
Legally, a clear distinction should be made between two statements:
A national visa may be useful .
However, a national visa is not mandatory under Section 41 Paragraph 1 of the Residence Ordinance simply because the applicant intends to live permanently in Germany before entering the country and later work here.
List of sources
[1] Section 41 of the Residence Ordinance (AufenthV), in particular paragraphs 1 and 3, Laws on the Internet.
[2] Section 5 paragraph 2 of the Residence Act (AufenthG), general visa requirement, laws on the Internet.
[3] Section 4a of the Residence Act (AufenthG), Employment of foreigners.
[4] Section 39 of the Residence Ordinance (AufenthV), Obtaining a residence permit in the federal territory.
[5] Section 26 paragraph 1 of the Employment Ordinance (BeschV), privileged access to the labour market for certain nationals.
[6] VG Oldenburg, decision of 26.03.2008 – 11 B 730/08.
[7] OVG Lüneburg, decision of 02.11.2006 – 11 ME 197/06, InfAuslR 2007, 67.
[8] OVG Rheinland-Pfalz, decision of 04.06.2007 – 7 B 10282/07.
[9] Federal Administrative Court, Judgment of 16 November 2010 – 1 C 17.09, ECLI:DE:BVerwG:2010:161110U1C17.09.0.
[10] Federal Administrative Court, Judgment of 11 January 2011 – 1 C 23.09.
[11] General Administrative Regulation on the Residence Act of 26 October 2009 – AufenthG-VwV.
[12] Berlin State Office for Immigration, Procedural Guidelines for Residence in Berlin – VAB, current version.
[13] Bergmann/Dienelt, Ausländerrecht, 15th ed. 2025, commentaries on § 5 AufenthG and §§ 39 ff. AufenthV.
[14] Hofmann, Ausländerrecht, 3rd ed. 2023, commentary on § 5 AufenthG and AufenthV.
[15] Hailbronner, Ausländerrecht, Loose-leaf commentary, commentaries on § 5 AufenthG and § 41 AufenthV.
[16] Kluth/Heusch, BeckOK Ausländerrecht, Commentaries on § 5 AufenthG and §§ 39–41 AufenthV.
[17] Fritz/Vormeier, Joint Commentary on the Residence Act – GK-AufenthG.
[18] Huber/Mantel, Residence Act/Asylum Act, 4th ed. 2024.
