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A Visa Question with a Twist and Re-Setting the Famous Schengen Clock

Hello! I have a question that I'm having a hard time getting answered, including by the appropriate authorities. I'm turning to this forum in hopes that someone out there may have had the same issue, or knows someone who has. I'd love to talk to you if so!

This is my situation: My husband and I are Americans who are living in Portugal while pursuing post-graduate studies in Lisbon. We applied for and obtained temporary student visas in Portugal (non-Schengen) that are Class D. Our studies will finish in July 2016, at which point we will leave Portugal. We arrived in the Schengen Zone August 19, 2015 and our current visas expire December 31, 2015.

To extend our visas, we needed an appointment with SEF (the Portuguese immigration authorities) which we made and attended on December 1. Part of our paperwork was incorrect--not our fault, not the worker's fault, but incorrect nonetheless and therefore our visa extension was denied. Frustrating, especially because the next available appointmentto rectify the situation was APRIL 19, 2016!!! They will not accept our corrected paperwork without an appointment. Fine. Appointment is made, and we're told we are allowed to remain in Portugal to study because we're making a "good faith effort" to rectify the situation, which is true. Nonetheless, as I said, our visas expire December 31st and we would really like to explore Europe in January, February and March when we have breaks. I would love even more to venture beyond the Schengen Zone, but I am afraid I won't be let back in. I am heartbroken.

I am trying to determine when our "Schengen Zone clock" officially began. I am fully aware of how the 90/180 day rules work, so no need to go over that again. I suspect that, as of now, it began August 19 when we first arrived, despite having had the valid student visas. However, I've read that you can "reset" this clock by crossing out of the Schengen border prior to the visa expiration and then returning (again, while the visa is valid). Thus, creating a new stamp for immigration officials to determine when we actually entered the zone. We happen to be traveling at Christmas to Italy (Schengen) and were considering a jaunt over to Croatia (non-Schengen) so this is entirely feasible for us. Does anyone know if this is true? I've read a number of cases where it has been true, but none of them pertain specifically to Portugal (in fact, it was France where I saw this works). Does having a long term but temporary student visa mean that my clock actually DIDN'T start in August? I have also read that this also only applies if you haven't traveled to any other Schengen Zone countries for the 6 months prior to your "re-start." As luck would have it, our one jaunt out of Portugal was supposed to be to Brussels and it happened to be the weekend the city got shut down for fear of terrorist attacks. We cancelled. So, the only country we've visited during our time here is Portugal and its territories.

I have been in contact with SEF numerous times as well as the US Embassy here in Lisbon. I have messages in to the Italian consulate here in Lisbon, as well as the Portuguese embassies in both Rome and Zagreb. If you have had a similar situation or know who can answer my questions, I would be eternally grateful for your expertise. MUITO OBRIGADA!!!

Posted by
23253 posts

I am fully aware of how the 90/180 day rules work, so no need to go over that again.

If that is so, I am surprised that I have to explain that it is not so much when it starts as when it finishes.

You are therefore well aware that if you are using the Schengen visa waiver program it is based on your having been in any and all of the Schengen area for any parts of no more than 90 calendar days in any 180 continuous calendar days.

There is no reset.

The "end run" that you describe seems to me somebody hoping that with two stamps in their passport hopes to divert the attention of the immigration official away from the proper stamp. A particularly risky strategy it sounds to me, one likely to wind you up on the wrong side of a steel door.

If you have made contacts with those embassies and consulates you have done the right thing.

Unfortunately if they have said that you should stay in Portugal until everything is clarified that's probably what they want you to do and may be a good idea to do that.

BTW - I assume that the visa you are speaking of expiring at the end of this month was the visa you are under for your stay. You wouldn't have two concurrent visas for the same country.

Posted by
4498 posts

Not sure if anyone here will have such specific experience. But let me summarize because your post is rather lengthy and the issue is pretty straight-forward.

You have been living in Portugal on a student visa for about 4 1/2 months. The visa likely makes you a resident and gives you rights to travel as a resident. Your visa expires on December 31, 2015 and the issue is whether you can remain and travel for another 90 days on the Schengen tourist "visa."

If allowed, I'm not really sure it matters whether you "re-enter" the Schengen zone late in your student visa stay. You would need to keep your old visa and that would show you were a resident until December 31 (and/or it is stamped in your passport).

I'm also a bit unclear on the idea that the Portuguese authorities will let you continue to reside in Portugal without a visa. Did they not give you some type of temporary residency card? How would you prove to someone that you are legally allowed to be in Portugal while your new visa is under review?

Posted by
825 posts

Here is what happened to me in a similar situation but with a work visa:
I'm a US citizen but was living and working in Germany with a German work visa. My work visa and 2 year assignment ended in Feb and I returned to the US before the end date of my work visa. I was then able to return to Germany for business trips in March and June with no issues as my time in Germany with the work visa did not apply to the Schengen Zone 90/180 rules. The only question I was asked by border control was if I still was living in Germany to which I replied "Unfortunately not" with a frowny face.

It's not exactly the same as you situation since you have "temporary student visas in Portugal (non-Schengen)".

DJ

Posted by
2347 posts

If you leave the Schengen zone, would you really trust that you'd be able to explain things to the official looking at your passport upon reentry? That's an awful big risk.

Posted by
9361 posts

"However, I've read that you can "reset" this clock by crossing out of the Schengen border prior to the visa expiration and then returning (again, while the visa is valid)."

I don't know about the student visa part of it, but you absolutely cannot "reset" the clock like this. What would stop anyone from stepping outside the zone and re-entering over and over if this were true? Once the visa waiver days are used up, you must exit the zone for 90 days before returning.

Posted by
4 posts

Thank you all for your thoughts! I do appreciate them. To answer some questions and give an update:

--I do realize how the Schengen Zone clock usually works. I do. I am asking this question because I've gotten some information that leads me to believe that this scenario actually does exist. I've contacted the appropriate authorities, but in the meantime, I'm trying to get information from others. DJ's experience in Germany, one of the most hardline countries on the matter, continues to make me curious. I have read that a long term visa does not automatically roll over into a tourist 90/180 visa and you need to leave and re-enter in order to make this happen. I'm searching for others who may have had this circumstance.

--Remember I am not just whining that I reeeeallly want to stay in Europe longer than I'm allowed, pretty please may I? I am in school here through July. Had there not been an error in my paperwork, I'd have what I need and there wouldn't be this question. I'm not trying to avoid getting caught doing anything, I am asking if there are others who may have had this circumstance.

--I am told by SEF (the immigration authorities in Portugal) that we can remain here because we're making an effort to fix the problem. We're in their database with this information and have documents to support our claim and authorities in PORTUGAL will be able to see this. My fear is precisely what others have pointed out--other countries don't necessarily have to deal with this. Regarding that, SEF told us to contact those specific countries, which we have. Again, I am not trying to do illegal things, I just want to know what my options are. If the answer is a hard NO, then fine. But I need to know.

--AN UPDATE: I got in touch with the Portuguese Embassy in Zagreb (non-Schengen Croatia) and asked this question. They replied asking for more information on our visas, exactly what was wrong with our paperwork, etc. because this IS sometimes a situation that merits a re-boot of the 90/180 day limit. I will definitely report back with what we find out. In the meantime, if there is anyone who has had a similar situation, I appreciate your thoughts!

Posted by
4 posts

An interesting thread on the subject:
http://www.polishforums.com/law/poland-american-travelling-non-schengen-country-76338/

It's Poland and not Portugal... and the significant difference is that I don't have a stamp in my passport saying I have applied for the temporary residence card. But this scenario DOES exist, no? The individual was told by immigration in Poland that this is, in fact, what he should do. I am trying to ascertain whether my entry into the Schengen Zone with a valid student visa (therefore exemtping me from the 90/180 rule) then permits a second, tourist visa 90/180 period to begin once it expires, provided that I exit/re-enter prior to the initial visa expiration date. I am not trying to hide anything or divert attention from my previous stamps showing when I entered--there is a glaring student visa smack in the middle that I couldn't hide even if I wanted to, which I would expect to prompt questions from a border official. I'm saying my exit and re-entry might be a requirement in order to roll over into a new period, despite the typical 90/180 time limit.

Posted by
9361 posts

I'm sorry, I don't see anything in that thread that confirms your idea of leaving before the visa expires, etc. The OP asks the question, and someone says, "As I understand it...." but that's hardly official word. I don't see any place where they say that Polish officials verified this. If you arrived on your student visa, your Schengen-area visa waiver won't begin until that visa expires in December. (Your Schengen visa waiver did not start then because you have a visa instead.) Then you have 90 days to be in the Schengen area. I would think that if you are back in Portugal (where you have permission to be) by the time that 90 days is up, you would be fine. I am not an immigration official, though, and they are the only ones who can say for sure.

Posted by
103 posts

I had a sort of similar issue when I studied in Australia in the early 2000s. Due to a mix up with my paperwork from the university, I didn't get the correct paperwork until shortly before I needed to leave to start the semester, aka not long enough to apply for the visa. Australia allows (at least they did at the time) certain nationalities to apply for certain types of student visas after entering on a tourist visa, and as a U.S. citizen studying for a semester, I met the requirements to do so. I then dutifully applied online for my student visa within a week of arriving, got a confirmation that my application had been received, that I should hear back within a couple of weeks, and that I had permission to stay in the country while the application was pending (and something like 30 days after a decision had been reached). The two weeks came and went and after about 3 weeks I called DIMIA, was told that my application looked fine, that it was probably just a delay due to the start of the semester, and not to worry.

More time passed, and I made another call, got the same response. Eventually the uni's international office wanted some sort of proof I could be in the country to show they were in compliance, so I went to a DIMIA office, was told the same thing as I had been on the phone, but they printed off a bridging visa label and put it in my passport so I'd have something for the international office. I made a few more phone calls and always got the same story, that everything looked fine and they didn't know why it hadn't been approved, but not to worry. Long story short (too late!) I spent the whole semester there without ever getting the student visa. I can only imagine that it got stuck on someone's desk or whatever. But, at any rate, just an example of people being allowed to remain in country while their visa issue is pending.

That said, I opted not to leave Australia during the semester. I had a 2-week fall break and reallllly wanted to check out New Zealand. But, I didn't want to risk it. So, I stayed put and took advantage of what there was to see in Australia.

Having done immigration work in the U.S. (not the EU or Schengen, so I can't speak to their procedures, but I do have a sense of how immigration/visa policies work), I would say two things. First, if you were to study in the U.S., remain there lawfully, leave after finishing studying, then turn around and come in under the visa waiver program, there would be no issues with you having stayed in the United States for years as a student. That time is counted separately since you were admitted to the U.S. under a separate category. Second, U.S. student visas are issued for "duration for status" meaning that even though the visa may say that it's only valid for X amount of time, you're allowed to remain in the country longer as long as you're still in the country as a student. That said, if you leave the U.S. after the visa expires and want to come back, evne if you're still a student in the same program, you'd need a new, valid visa to return to the U.S. and it would have to be a valid Student visa to resume your studies. So, long story short, you were admitted to Portugal as a student, not a tourist. The 90/180 Schengen rule is for tourism purposes, not study purposes. So, my initial thought would be that you could, in theory, leave the Schengen area, then come back as a tourist without issue. That said, you'd be admitted to the Schengen area as a tourist, and may not be eligible to study in Portugal with that status.

So, I'd attempt to ask SEF how leaving and returning would affect your student status. I'd also ask if they could put a visa label in your passport documenting your permission to remain in Portugal while your student visa application was pending. Finally, while I certainly understand the desire to travel, I'd probably remain in Portugal until the visa issue is sorted out. It's not worth the risk, imho.