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A Primer: Korean Law And US Immigration Law

by Young H. Noh

One of the most interesting aspects of working in Korea as a foreign legal consultant, aside from witnessing the South Korean World Soccer Team advancing to semifinals, is encountering certain immigration cases where Korean law and U.S. immigration law intersect. The following areas of Korean law may prove useful when handling immigration cases of Korean nationals.

Korean passport law

Under the Korean law governing the validity of Korean passport, immigrant passports of U.S. permanent residents automatically expire IF the Korean national passport holder physically stays in Korea continuously for more than two years. This means U.S. immigration counsel cannot advise a Korean national who is a permanent resident of the United States and possesses a reentry permit to just make sure to return prior to the expiration of their reentry permit. U.S. immigration counsel should also inform the Korean national client that he or she should also avoid staying in Korea continuously for over two years. There may often be instances where the two-year reentry permit period has not expired but the Korean passport of the Korean national with the still valid reentry permit might have in fact expired. In such an instance, the Korean national reentry permit holder will not be able to board the plane and must first obtain a Travel Permit (which looks like a Korean passport) from the Korean Passport Office and then use the Travel Permit to first enter the United States and then obtain another Korean passport from the Korean Consulate in the United States. However, if both the reentry permit and Korean passport have expired, there is a possibility that they may not be able to return to Korea at all, unless the Korean national is able to obtain a returning resident visa from the Embassy or manages to receive a waiver of required documents at the port of entry.

Korean military obligation and dual nationality law

Most Korean national males, thanks to the existence of the ever threatening political situation in North Korea, become subject to the Korean military duty on January 1st of the year in which they become 18 years old. Korean national males must first obtain what is called a Permit To Travel Abroad from the Korean Military Office if they wish to come to the U.S. to study. Once they obtain an F-1 visa, they can obtain permission from the Korean government to extend their F-1 stay in the United States until they reach approximately 26 ~ 28 years of age (depending on the areas of study), at which point they must return to Korea or the guarantors in Korea who guaranteed his return to Korea will forfeit a bond of about $45,000.00 USD. It should be noted that even marrying a U.S. citizen and becoming a conditional permanent resident of Korea will not exempt the Korean national from the mandatory Korean military duty requirement. The Korean national male will have to actually remove the conditional status before the required age.

The desire to have their male children avoid serving in the Korean military is often one of the factors considered by Koreans parents when they decide to immigrate to the United States or another country. Under Korean law, Korean males are not subject to the Korean military obligation in the following two scenarios:

  • Where the Korean national and the immediate family members immigrate to the United States, in which case the Korean national male can apply for an exemption;
  • Where the Korean national was born in the United States during, for example, his parents' F-1 or B-2 stay in the United States and whose name was recorded in the Family Census Register; and therefore is considered to be a dual citizen under Korean law; and can be exempt from the Korean military obligation IF he formally renounces his Korean citizenship prior to the first day of the year during which they reach 18 years. Missing this date will subject the Korean national male to the Korean military obligation.

The above are just a few examples of Korean law affecting immigration cases of Korean nationals. There are many instances where Korean legal issues arise, and to properly serve Korean clients, U.S. immigration counsels should consider working with a knowledgeable Korean attorney or inform their Korean clients to consult such an attorney.

About The Author

Young H. Noh heads the Immigration & Foreign Law Group of Hanul Professional Law Corp. in Seoul, Korea. Prior to becoming a foreign legal consultant, he resided in Hawaii where he had a successful law practice for over 10 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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