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SOUTH KOREA: Stricter Policy for Illegal Stay

, 17/12/2019

The Korean national Assembly is debating tougher penalties for the employers of illegal residents. For those voluntarily reporting illegal residence by 28 February 2020, penalties will be reduced or exempted.

Penalty Increases

Illegal residents are currently subject to fines ranging from KRW 1,000,000 for illegal stays of less than one month to KRW 20,000,000 for illegal stays of three years or more.

The current maximum penalty for employers of illegal residents is KRW 20,000,000 OR three years of imprisonment. The proposed amendment currently under discussion would increase this to KRW 50,000,000 AND five years of imprisonment.

Voluntary Reporting for Illegal Residents

For illegal residents who voluntarily report their residential status by 28 February 2020 and are scheduled to leave the country by 30 June 2020:

The penalty fee will be exempted.
A Certificate of Voluntary Departure” will be issued, allowing them to reapply for a Korean visa in the future. On reapplying, they will be issued a single-entry C3 visa allowing a maximum stay of 90 days. If they then leave the country within 90 days and without committing any illegal activities, they may qualify for multiple entries and a longer duration of stay the next time they apply for a visa.
They will be allowed to apply for TOPIK (Test of Proficiency in Korean). If they obtain level 2 or above, they will be allowed to apply for an E9 visa (for workers from certain countries only).

For illegal residents who voluntarily report their residential status by 28 February 2020 but are scheduled to leave the country after 30 June 2020; OR

For illegal residents who do not voluntarily report their illegal residential status by 28 February 2020 and are caught by government investigation after 2 March 2020:

The penalty fee will be imposed and the violation period will be calculated from 1 March 2020.
Whether or not they voluntarily reported their residential status, any foreign national who paid a penalty fee for illegal residence will be banned from re-entry to South Korea for between six months and one year.
Those who do not pay the penalty fee in full will be permanently prohibited from entering South Korea.

Voluntary Reporting for Employers

Manufacturing industry

The voluntary reporting system will operate between 11 December 2019 and 31 March 2020.
For employers who report during this period, the penalty fee will be exempted and their illegally resident employees will be allowed to stay for three more months from the reporting date.

Agriculture and fishing industry

The voluntary reporting system will operate between 11 December 2019 and 15 January 2020.
For employers who report within this period, the penalty fee will be exempted and their illegally resident employees will have legal opportunities for seasonal work. A new visa type for seasonal workers (E8) is under discussion at the Ministry of Justice.

Small and medium-sized businesses under the Employment Permit System (EPS)

The voluntary reporting system will operate between 11 December 2019 and 31 March 2020.
For employers who report within this period, 30% of the penalty fee will be imposed. However, if they are caught by government investigation without having reported, 100% of the fee will be imposed and they will be banned from hiring foreign nationals for at least three years. The penalty fee will be calculated by immigration officers based on the length of the period of violation.
For illegal residents reported by their employers within this period, 30% of the penalty fee will be imposed, and they will be allowed to work at the sponsoring company until their E9 visa expires. If they prefer to work elsewhere, the Ministry of Employment and Labour will help them to find another job. However, if they are caught by government investigation without having reported, 100% of the penalty fee will be imposed along with a forced departure order.

Case Studies

Case 1

A D8 visa holder sponsored by company A, accidentally missed the extension deadline for their Alien Registration Card (ARC)

A penalty fee will be imposed. The period of violation will be calculated from the day after the ARC expiry date.
If the immigration officer finds that the application deadline was missed by mistake, then the ARC holder will be exempted from the ban on re-entry.• All the required documents should be prepared and, more importantly, both ARC holder and employer should not have any legal violations and unpaid taxes.
There is no big change compared to the current policy.

Case 2

An D8 visa holder sponsored by company A has also been working at company B, which is in the same group as company A. The visa holder has been paid from both entities but his D8 visa was sponsored by company A only, and the work at company B was not reported to the immigration office.

A penalty fee will be imposed for both the ARC holder and company B.
The period of violation will be calculated from the date the visa holder received payments from company B, which can be found via their withholding tax certificates.
The re-entry ban (for six months to one year) will vary from case to case, at the discretion of immigration officers, but it is likely that to be applied in most cases. The possibility of a re-entry ban in these cases is a new policy.
The D8 visa holder and their second workplace need to prove that it was a simple mistake and not deliberate tax avoidance.

Case 3

An E9 visa holder has completed work at the visa sponsor company (company A). The E9 visa has remaining validity, and the holder has obtained a new job at a different company (Company B) to work until the E9 expiry date.

Regardless of visa type, working at a non-sponsoring company is illegal and the Korean government will impose the stiffest regulations in these cases.
A penalty fee for both employer and employee will be calculated from the date the visa holder started work at company B.
The visa holder will also receive a departure order and will be banned from re-entry to South Korea for between six months and one year. If the penalty is not paid, the ban will be permanent.