Korean Military Service Laws And Implications For U.S. Immigration Laws
Introduction
If one were to ask which area of Korean law has the greatest impact on the U.S. or Canadian immigration laws, without hesitation, the answer would be Korean Military Service Laws[1]. The Korean Military Service Laws are all pervasive and impact all Korean males. Therefore, U.S. immigration practitioners may find it useful to become aware of the parameters of Korean Military Service Laws as they impact U.S. immigration practice and the specific instances under which Korean and Korean-American males may postpone or be exempted from their military obligations. This article, describing the parameters of Korean Military Service Laws, will discuss the Korean Military Service Laws and the immigration implications for Korean and Korean-American males.
The Korean Military Service Laws are mandated by the South Korean Constitution and state that all male citizens of Korea must fulfill the military service duties as defined by Section 1 of Article 3 in the Constitution. Consequently, Korean males' stay abroad is often complicated and limited by their military obligations back home[2]. Many Korean male students studying abroad in the U.S. find themselves having to go back to Korea before completing their F-1 student visa purpose due to the age limits for studying abroad as set forth by the Korean Military Service Laws[3]. Conversely, U.S. green card holders who are exempted from Korean Military Service Laws and U.S. citizens of Korean descent must also limit their stays in Korea if they wish to avoid being subject to Korean Military Service Laws.
Permit For International Travel
Korean males between the ages of 18 to 35 who have not fulfilled their military obligations are required by law to obtain a travel permit to travel abroad by submitting appropriate forms including a guarantee of return form[4] . Purposes of travel abroad (that can create potential conditions for intersection with U.S. immigration laws) include: 1) short travel, 2) studying abroad, 3) living with parent(s), 4) relocation, and 5) employment.
In the first case (short travel), the validity of the permit is limited to three months. In the second case (studying abroad), he must submit a proof of registration or acceptance of admissions. Those who are unable to graduate by specified deadlines [5] are not granted travel permits. In the third case (living with parent), one must either plan to live with the parent for at least a year or the parent must already be working in a foreign country. The permit is valid until December 31 of the year when the permit holder turns twenty years of age. Those over twenty years of age are not eligible to apply for a travel permit under this category. In the fourth case where one relocates to another country, the permit is valid until the time he returns to Korea permanently. Last but not least, for working abroad, the permit is generally valid for three years.
Upon receiving the permit, he needs to submit it to the nearest Military Manpower Administration (MMA) travel report center at the port of departure at least two days before departure. He must also report his arrival in Korea to the MMA within thirty days after arrival. Those who fail to return by the due date as specified on the permit may face a maximum of three-year-imprisonment as well as restriction on social activities, e.g. public office positions, until age 40[6]. In addition, the guarantor may face up to 50,000,000 KRW, or around $45,000 USD, in fines..
Extension of Travel Permit
Extension of the travel permit is intended for those who left Korea before the age of seventeen or was born outside of Korea and turned eighteen (the official age for potential conscription) but plan to continue staying abroad. In effect, filing for an extension of the travel permit allows one to postpone his military obligation. Extension is allowed under the following conditions:
|
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Length of
time allowed
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Necessary
documents
|
Restrictions
|
|
Studying
abroad
|
One
year in addition to age
limits as specified for studying
abroad
|
Proof
of school registration or acceptance of
admissions
|
See
Footnote 3
|
|
Living
with parents
|
Until
age 20
|
Proof
of residence for
parent(s) and/or family
|
Until
age 20
|
|
Working
|
Within
3 years
|
Verification
of employment
|
Until
age 28
|
Extension is also granted when both parents acquire green cards in which case he may stay abroad for as long as he wishes, thus effectively postponing his military obligations. However, if he left Korea and lived abroad before age seventeen, he must file for an extension and receive it at least two to three months in advance of his eighteenth birthday.
Exemption
Exemption from military duty is granted under the following conditions: 1) the subject person and his immediate family obtain green card or permanent resident status of another country, i.e. United States, 2) obtains, as a dependent, a conditional green card via family or employment-based route, or by marrying an American citizen, 3) becomes naturalized as an American citizen and renounces his Korean citizenship by submitting proper documents [7], or 4) is born in the U.S. and automatically receives citizenships in Korea and the country of birth, i.e., dual citizen.
Impact on Dual Citizens
The last condition highlights how a U.S.-born American citizen may be obligated to involuntarily serve in the Korean military. A U.S.-born Korean-American who is registered under the Korean family registry must choose a single citizenship before December 31st of the year in which he turns seventeen. If otherwise, he becomes unable to renounce his Korean citizenship without first fulfilling his Korean [8] . In such a situation, if he stays in Korea for over six months within any given year, he faces potential draft into the military. A non-registered Korean-American who stays in Korea for over six months in a given year also faces potential conscription until he turns age twenty two when he automatically forfeits his Korean citizenship if he does not choose a single citizenship before age eighteen.
Generally, the Korean government does not encourage dual citizenship but allows it for those who were born under at least one Korean parent in a country, e.g. the U.S., which grants citizenship based on jus sanguinis, or by blood. If, however, the Korean parents renounce their Korean citizenship, their son is no longer considered to be a Korean and is not granted a Korean citizenship at birth. Dual citizenship is not allowed if one obtains another foreign citizenship through naturalization, excepting those Korean women who marry foreigners and obtain their husbands' citizenship.
Furthermore, it is important to note that even if one obtains a (conditional) green card, he is still not free from his military obligations. He may be exempt from his military obligations if he becomes a naturalized American citizen and renounces his Korean citizenship by submitting proper documents at a Korean consulate office before entering Korea.
The renouncement of his Korean citizenship for the primary purpose of evading his military duties is viewed negatively by the Korean society and government, as can be seen by the example of the former popular Korean-American (then U.S. green card holder) pop singer, Yu Seung-Joon, who received much spotlight when he publicly declared that he would serve in the Korean military, only to renounce his Korean citizenship and become naturalized as a U.S. citizen a few months later. The Korean government barred the popular singer from entering Korea on the ground that it would be against the interest of the Korean government to let the singer enter Korea, thus highlighting the Korean government and people's sensitivity toward the issue of mandatory military conscription and opportunistic [9] .
Because the opportunity to evade military conscription through the attainment of green card or foreign citizenship (albeit with restrictions in terms of length of stay in Korea[10]) can arguably be more easily attained by the wealthy upper class, many Koreans view any action that can be interpreted as an attempt to evade military draft very negatively. In an attempt to curb such a trend, the Korean Supreme Court recently ruled that the attainment of a foreign citizenship through birth is not a sufficient reason to grant exemption of military obligations[11]. The Court also cited the plaintiff's parents doing business in Korea as proof of non-residence in the U.S.
Restrictions on Staying in Korea (for Korean and Korean-American males)
Green card holders and naturalized Korean-Americans exempted from military duty still face potential conscription if they stay for more than twelve months continuously in Korea. Leaving and returning to Korea within six months from the date of arrival is still considered to constitute a continuance of the twelve months period. Also, green card holders working and earning profit in Korea also face mandatory conscription if they stay over sixty days in a given year.[12]
Conclusion
The sensitive issue of mandatory military service is directly related to the defense capability of South Korea, which is technically still at war with North Korea. The Korean government and the legal system are intent on closing any loopholes that are exploited by those who wish to avoid military service. In fact, the instances in which Korean Americans, who were born and raised in the U.S. with minimal Korean language skills, were involuntarily conscripted during their temporary stay in Korea have further highlighted the complexities involving Korean military service laws. It is important to note that even if one attempts to evade military conscription by acquiring U.S. visas, green cards, and foreign citizenship(s), he is still subject to certain restrictions under the Korean Military Service Laws, which often supersede all other Korean laws. Therefore, the Korean government's efforts on curbing intentional draft evasion and strengthening mandatory conscription requirements are bound to continue.
[1]
The term, “Korean military service laws,” is used to refer to Section 1 of
Article 3 in the Korean Constitution, Acts, Presidential Enforcement Decrees,
Regulations and relevant Korean court cases.
[2]
All Korean males aged between 18 and 35 (as defined by Chapter 9 Article 108 ‘Persons
allowed international travel’) are subject to Korean military obligations and
must first apply for a travel permit by submitting a guarantee of return form
signed by the guarantor and a proof of school registration to the consular
office which then undergo inspection by an area military office in Korea. If he reaches age 18 (which is when he is officially
begun to be subjected to the Korean Military Laws), he must apply for a travel
extension permit.
[3]
According to the Korean military service laws, the age limits for male students
studying abroad are as follows: community college: 23; 4-yr university: 25;
graduate school 27; doctoral: 28 (including 5th and 6th
semester process); maximum age for any study: 28.
[4] The guarantee of return
form must have at least one parent as a guarantor and an additional guarantor
or may employ an insurance company as the additional guarantor to guarantee his
return.
[5] Id. 3.
[6]The restrictions may, of
course, be lifted by fulfilling military obligations.
[7]Exemption application, family registry
form, green card or citizenship certificate, and/or certification of residence
in case where the family obtained green card.
[8] He is unable to renounce
his Korean citizenship without fulfilling his military obligations until he
turns age 35.
[9]The Korean government
decided that by setting up an example of this particular case involving the
popular singer and barring him from entering Korea, it would be acting in the
national interest by discouraging an increase in the number of intentional
draft evasion.
[10] Limitations
on length of stay (to avoid military conscription) for green card holders apply
until age 35 and include: 1)staying over a year; 2)staying with intent to
reside permanently.
[11]
The recent Korean Court case held on October 20, 2004 that a foreign-born male
of Korean descent was still subject to Korean military service obligations,
citing Military Law Chapter 64 “Requirements for Military Service Exemption”, and ruled that because he did not
physically live abroad with his family in actuality and only acquired his
citizenship through birth rather than by acquiring a permanent resident status beforehand, in addition
to both of his parents working in Korea.
http://www.onnuri.co.kr/board/wayboard/wayboard.php?db=onnuri_news_usa&j=dv&number=635.
[12]Categories of employment
consist of those operating an agricultural, industrial, commercial, and fishery
businesses as well as entertainers, artists, and athletes. Those who earn more than 10 million KRW are
also included.
About The Author
Young H. Noh is an expat U.S. attorney working and residing in Korea. He is
co-author of the Chapter on American Embassy in Seoul in Visa Processing Guide
published annually by AILA. Young Noh represents Korean clients with their
immigration and visa cases and also works with Korean-licensed attorneys to
represent non-Korean clients with business and litigation cases involving
Korean law. Mr. Noh can be reached at: webattorney@yahoo.com.
Amy S. Lee is
a Korean-American fluent in English and Korean. She graduated with a B.A. in Political Science from the
University of California, Berkeley and is currently teaching academic English
in Korea. As a law school-bound
student, she is also undergoing legal internship at New Dimension Law Group in
Korea. Email: amysoojlee@yahoo.com
Authors
would like to thank Harry Chung and Jenny Cho for
double-checking relevant aspects of Korean law. Therefore, authors are not responsible for any mistaken
interpretations of Korean laws.
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