Tuesday, January 07, 2014

Military Draft Quandry: Update


Before the Korean writes anything about Korean citizenship, military draft, etc., the usual caveat must come first:

The Korean is not an immigration attorney of Korea. This post is for broad informational purposes only. Do NOT ask him about your specific situation, because he cannot possibly give a competent answer that fits your situation. Immigration law and conscription law of Korea are complicated things, and you must consult an attorney if you are seriously worried about your situation.  

This post is to provide update on the strange twilight zone in which many young Korean American men find themselves. To recap the situation: a strange confluence of new Korean laws, which sought to restrict the ability to dodge the military draft and at the same time encourage more ethnic Koreans living abroad to visit and live in Korea more freely, resulted in a messy situation: a number of young, second-generation Korean American men suddenly gained Korean citizenship, and accordingly, the duty to report for Korea's mandatory military service. What is more, if these Korean American men missed the very small, three-month window after their 18th birthday to renounce their Korean citizenship, they are not allowed to renounce their citizenship until after they are 38 years old, i.e. no longer eligible for the draft.

Naturally, this puts young Korean American men in an odd situation. Many of them did not even know that they were Korean citizens as of 2010, when the dual-citizenship law came into effect. Then if they tried to study or work in Korea or visit Korea for the long term, they would first find out that (1) they had Korean citizenship, (2) they might be subject to the draft because of their Korean citizenship, and (3) they cannot even renounce their Korean citizenship, because their 18th birthday had already passed.

As of late last year, Korea's Military Manpower Administration carved out a couple of exceptions that would help many people in this twilight zone.

First, there is an exemption for second-generation, non-resident citizens [재외국민2세]. This page from the MMA explains the exemption in detail. To be eligible, one must:
  • Have been born outside of Korea OR left Korea before turning six years old, AND
  • Have continuously lived abroad until December 31 of the year in which he turned 17 years old, which means he was not present in Korea for more than 60 days in a one-year period, AND
  • Currently possess permanent residency or citizenship of a foreign state. IN ADDITION,
  • One's parents must also currently possess permanent residency or citizenship of a foreign state.
If you are considered a second-generation, non-resident citizen, you may stay in Korea for a long term without being subject to military draft. Men born after January 1, 1994 may stay in Korea up to three years. There does not appear to be a similar restriction for men born before January 1, 1994.

One would verify that he is a second-generation, non-resident citizen by submitting documentation to Korean embassy or consulate, which provides a stamp on the passport signifying the exempt status.

Second, there is an exemption for those studying in a "domestic educational institute." This page from the MMA explains this exemption in more detail. To be eligible for this exemption, one must simply have a permanent residency or a citizenship of a country other than Korea. The exemption is cancelled if:
  • One stays for more than six months after graduating, finishing, taking a break from or having been expelled from the school;
  • One's mother, father or spouse stays in Korea for more than six months out of the year during the time at school; OR
  • One works and earns money during one's study.
Apparently, this exemption applies automatically through the school in conjunction with the MMA, but it would make sense to double-check with the school.

If your situation does not fall under the two exemptions, there is still hope. There is currently a Constitutional Court petition in progress to find the 2005 law that prohibited renunciation of citizenship unconstitutional. Hopefully, the Constitutional Court would fashion a more rational solution to the military draft issue. It would be a good idea to check back on this issue in a year or so.

The Korean will stress this again: he is not an immigration attorney of Korea. Nor is he watching this situation very closely. The laws and regulations may change again at any time. If you are difficult situation in terms of citizenship or military draft status, make sure to consult an actual attorney, and/or Korea's diplomatic staff.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.

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