I. Introduction

As of December 2016, there were 2,049,441 foreigners staying in Korea, comprising 4.0% of Korea’s total population (51,696,216). Since 2010, the yearly average increase of foreigners in Korea has stayed at 8.4%, and if this rate continues, there will be more than 3 million foreigners in Korea by 2021, which will be equivalent to 5.6% of the total Korean population. The main reason for this increase is that immigration of overseas Koreans from China and the former Soviet Union has increased at a yearly average of 29.0% since 2010.¹⁾ Two reasons why this has are as follows: first, the Korean government has maintained a an open immigration policy for overseas Koreans, softening the entry process to Korea and making it easy to find a job here; second, overseas Koreans from these areas can make much more money here than in their resident countries. I would like here to review the change in legal environment which has enabled this rapid increase of overseas Koreans; the employment system for hiring overseas Koreans, and the labor protection available.


II. The Legal Environment and Employment System for Overseas Koreans

1. Legal environment

The Act on the Immigration and Legal Status of Overseas Koreans (hereinafter referred to as the “Overseas Koreans Act”) was designed to reduce Korea’s immigration control for overseas Koreans and to induce them to come by softening a variety of restrictions for visits and stays, and related to real estate acquisition and financial transactions, etc. At the time of its enactment, the Overseas Koreans Act defined Korean foreign nationals as ① Koreans (and their lineal descendants) who had lost Korean nationality after emigrating abroad after establishment of the Government of the Republic of Korea; and ② Koreans (and their lineal descendants) who emigrated abroad before the Korean government was established and who could explicitly verify their previous Korean nationality. However, many overseas Koreans residing in China and the former Soviet Union (CIS area²⁾ ) emigrated abroad before the Korean government was established, and at the time they emigrated there were no diplomatic relations with South Korea. It would, therefore, be impossible for overseas Koreans residing in China and the former Soviet Union to explicitly verify their former Korean nationality. The Constitutional Court ruled that discrimination in excluding overseas Koreans from these countries was unconstitutional due to violation of the principle of equal treatment when comparing full application of this Law for overseas Koreans from other countries, such as the USA, Japan, etc. ³⁾ After this Constitutional Court ruling and supplementary revision of the law, overseas Koreans from China and the former Soviet Union began to obtain working visit visas (H-2), and gradually extended these to overseas Korean visas (F-4) and permanent resident visas (F-5), making it possible for them to stay longer.⁴⁾ However, in order to prevent negative impacts on the Korean employment market due to uncontrolled issuance of such visas to overseas Koreans, those in the country under working visit visas (H-2) who obtained their qualification through long service in non-professional employment have been allowed to receive an overseas Korean visa (F-4), except for those with college graduate degrees (see Table 1 below).

Status of Sojourn for Foreigners ⁵⁾

2. Employment system for overseas Koreans

After the Constitutional Court’s decision that the provision discriminating against overseas Koreans according to country of residence was unconstitutional, a new amendment was enacted that avoided this discrimination. Many systemic changes were then adopted.

(1) Employment management system (2002~2004, F-1 family visitation visa)
In December 2002, the employment management system for overseas Koreans was introduced, which allowed overseas Koreans aged 40 years or older who had a family member or relative in Korea, to get a job in 8 service fields. In May 2003, the age limit was lowered to 30.

(2) Exceptional employment permit system (2004~2007, E-9 non-professional employment visa)
Overseas Koreans from China and the former Soviet Union were managed under the exceptional employment permit system in the Act on Foreign Workers’ Employment, Etc. This system allowed overseas Koreans who were 25 years of age or older, and who had a relative in Korea, to receive a family visitation (F-1) visa first and then change it to a non-professional (E-9) visa with which they could work for up to 3 years in workplaces in services, manufacturing, and the agricultural and cattle-feeding industries. However, as can be gleaned from the requirements, this employment permit system excluded those who did not have relatives in Korea.

(3) Working visit system (from 2007, the H-2 working visit visa)
The working visit system was introduced in March 2007. This system has the characteristic engagement policy towards overseas Koreans from China and the former Soviet Union, who have been relatively neglected as concerns the benefits of the Overseas Koreans Act. ⁶⁾ This system allows employment for all overseas Koreans, whether or not they have a family member or relative in Korea; the scope of jobs for which they are eligible has been extended and permission given to allow their quitting one job and moving to another workplace with no restrictions.
Within the effective period of their working visit visa, they can visit their home countries freely and stay in Korea for up to 5 years. Overseas Koreans who have relatives can come to Korea by invitation, while those who do not have relatives are allowed to come to Korea based on a computer-based lottery among those who have passed a Korean language proficiency test. This working visit system allows for employment in 38 non-professional jobs; the seeker should complete employment training first before getting a job either through the job centers or on their own.

Changes of the Employment System for Korean Foreign Nationals ⁷⁾


III. Employment Relations for Overseas Koreans

1. Expanded visa qualifications for overseas Koreans (H-2 → F-4 → F-5)

The Ministry of Justice expanded the application of the overseas Korean visa (F-4) to eliminate discrimination based upon resident country. In April 2010, according to 「Policies to be pursued for overseas Koreans in 2010」, those working under a working visit visa (H-2) for at least 1 year (changed to 2 years in August 2011) in a specific industry such as manufacturing, were allowed to obtain an F-4 (overseas Korean) visa that would permit them to stay in Korea in recognition of their contribution to the national interest. ⁸⁾
As well, overseas Koreans with a working visit (H-2) visa can obtain a permanent resident (F-5) visa upon satisfying all of the following conditions: ① he/she has worked for at least four years in the same workplace (manufacturing, agriculture or the livestock or fishing industry) without changing his/her workplace; ② He/she or his/her family has property in Korea valued at KRW 30 million or more, with the ability to maintain their livelihood; or ③ he/she has obtained a specified technical certificate through the examination given by the Korea HR Development Corporation or whose annual income is more than the average GNI (Gross National Income) as stated by the Bank of Korea in the previous year. ⁹⁾
Status of Overseas Koreans ¹⁰⁾

2. Employment relations

(1) Working visit (H-2)
Overseas Koreans who entered with a working visit (H-2) visa must strictly follow