Stricter Policy For Illegal Stay
The Korean national Assembly is debating tougher penalties for
the employers of illegal residents. For those voluntarily reporting
illegal residence by February 28, 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 February 28, 2020 and are scheduled to leave the country
by June 30, 2020:
- The penalty fee will beexempted.
- A Certificate of VoluntaryDeparture” 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 forTOPIK (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 February 28, 2020 but are scheduled to leave the country
after June 30, 2020; OR
For illegal residents who do not voluntarily report their
illegal residential status by February 28, 2020 and are caught by
government investigation after March 2, 2020:
- The penalty fee will be imposed andthe violation period will be calculated from March 1, 2020.
- Whether or not they voluntarilyreported 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 feein full will be permanently prohibited from entering South
Korea.
Voluntary Reporting for Employers
Manufacturing industry
- The voluntary reporting system willoperate between December 11, 2019 and March 31, 2020.
- For employers who report during thisperiod, 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 willoperate between December 11, 2019 and January 15, 2020.
- For employers who report within thisperiod, 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 willoperate between December 11, 2019 and March 31, 2020.
- For employers who report within thisperiod, 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 bytheir 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. Theperiod of violation will be calculated from the day after the ARC
expiry date.
- If the immigration officer finds thatthe application deadline was missed by mistake, then the ARC holder
will be exempted from the ban on re-entry.
- All the required documents should beprepared and, more importantly, both ARC holder and employer should
not have any legal violations and unpaid taxes.
- There is no big change compared tothe 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 forboth the ARC holder and company B.
- The period of violation will becalculated 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 toone 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 secondworkplace 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 anon-sponsoring company is illegal and the Korean government will
impose the stiffest regulations in these cases.
- A penalty fee for both employer andemployee will be calculated from the date the visa holder started
work at company B.
- The visa holder will also receive adeparture 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.