By Bongsoo Jung, Managing Director of KangNam Labor Law Firm, South Korea
Introduction
According to the ‘2015 Immigration Statistics of the Ministry of Justice’, the number of foreign residents increased to 1,899,519 people in 2015, from 747,467 ten years ago. There will certainly be more than 2 million in 2016, and 10 years after that we can expect 3 million. The percentage of foreigners in comparison with the total population was 1.5% in 2005, increased to 3.7% in 2015, and is expected to be more than 6% by 2025. [1]
The system for bringing in migrant workers has changed very much. To resolve the severe labor shortage of small- and medium-sized companies, Korea introduced the Industrial Trainee System [2] in 1993 to bring in foreign migrant workers, but it caused many problems such as corruption within the various countries in the sending of migrant workers, and violations of human rights within Korea. Therefore, Korea introduced the Employment Permit System (EPS) under the Act on Foreign Workers Employment, etc. (hereinafter referred to as the “Foreign Workers Act”) in August of 2004 so that it could correct these problems and secure a long-term supply of migrant workers. The Employment Permit System consists of the non-professional employment visa (E-9) for foreign workers engaged in simple unskilled jobs and the visiting employment visa (H-2) for overseas Koreans. For the past ten years, as we have invited more and more foreign migrant workers, our industries in small- and middle-sized manufacturing, construction and related businesses have become dependent upon them. This has resulted in many changes to the Employment Permit System and has resulted in an extension of the maximum stay period, expanded job descriptions, and even an improvement in the protection of the human rights of the migrant workers themselves. Along with these changes, the number of overseas Koreans who come to Korea for work has increased, due to Korea’s engagement policy towards these individuals.
I would like to review these changes below;
Changes to the Employment Permit System
1. Increase in the number of countries sending migrant workers
6 countries were sending migrant workers to Korea in 2004; 4 more were added in 2006, and 5 more in 2007, for a total of 15 countries today.
- Countries sending migrant workers in 2004 (6): the Philippines, Mongolia, Sri Lanka, Vietnam, Thailand, Indonesia
- Countries added in 2006 (4): Uzbekistan, Pakistan, China, Cambodia.
- Countries added in 2007 (5): Bangladesh, Nepal, Kyrgyzstan, Myanmar, East Timor.
2. Extended jobs
Jobs allowed for migrant workers were in manufacturing, construction, and agriculture & livestock in 2004, and were gradually extended to fishing and some service industries (cold storage warehousing, etc.) in 2014. Special EPS jobs were allowed in construction and some service industries (6) in 2004, and then widely extended to the manufacturing, agricultural & livestock, and fishing and service industries (29 jobs such as food service work, housework and nursing services, wholesale and retail services, etc.) in 2014.
3. Extended period of stay
At the beginning of the EPS, the maximum sojourn for migrant workers was strictly adhered to according to the principle of the short-term replacement cycle, but due to the continuous demands for more skilled migrant workers, the period of sojourn has gradually been extended to a special system for re-entry of skilled migrant workers who have never changed workplaces (Article 18-4). As for those who are qualified and are completing their sojourn (3 years plus 1 year and 10 months), if they apply for a re-entry employment visa, they can re-enter and work at their workplace for another 4 years and 10 months. This means that the employee can work for up to almost 10 years (specifically, 9 years and 8 months).
4. Shortening the period to require efforts to hire Koreans first
Companies wanting to hire migrant workers are required to first spend 30 days seeking to hire Koreans through the job center, something that was strictly observed in 2004. However, this effort was reduced to 14 days in 2010, and if the employer placed an advertisement in a newspaper or broadcasting media for 3 days or more, the required length of effort to hire Koreans first is reduced to 7 days.
5. Compulsory duty to leave the country omitted
When the migrant workers completed their employment for three years and expected to have an extension, it was required that they leave the country for one month or longer. However, under the new revision, migrant workers can renew their contract period for an additional two years without leaving the country (Article 18-2).
6. Adjustment of the contract period
The employer and migrant workers can, in principle, have an employment contract for one year, which can be renewed within a maximum of three years. However, under the new revision, the fixed contract period of one year has been abolished, and migrant workers can now have an employment period of up to three years upon mutual agreement of both the employee and employer (Article 12).
7. Extension of the job-seeking period
In the past, when migrant workers left their workplaces, they were required to find a job within two months, but under the new revision, the job-seeking period has been extended to three months (Article 25). However, this does not apply to overseas Koreans with H-2 status.
Expanded Use of the Special EPS for Overseas Koreans
1. Background of the special Employment Permit System
There is a general opinion among the various civil groups and all classes of society that Korea should maintain a warm engagement policy towards overseas Koreans from China and the former Soviet Union, and that there was some necessity to correct discrimination between them and overseas Koreans in advanced countries like the U.S.A. and Japan who freely engaged in employment activities with their employment permit visa (F-4). With this in mind, the Regulation Regarding Employment Management of Visiting Overseas Koreans (Labor Ministry Notice 2002-29) was announced on December 6, 2002, which allowed overseas Koreans aged 40 years or older, and who had relatives in Korea, to obtain employment in 8 service-related jobs.
Later this Employment Management System was integrated into the special EPS, and construction jobs were immediately added. The improved status for overseas Koreans was extended to China and the former Soviet Union, and the applicable jobs were also gradually extended. Eligibility was widened to overseas Koreans aged 25 years or older who had a relative or someone on their family register who resided in Korea. Then, starting in March of 2007, the Visiting Employment System was initiated, which allowed overseas Koreans who did not have any relatives in Korea to get a job. In 2016, allowed jobs increased to include more manufacturing and construction positions, plus 41 kinds of service industry positions. Overseas Koreans can now be employed for the available period (5 years) of a Visiting Employment Visa (H-2) and leave and/or come back to Korea with no limit to the number of visits.
2. Difference between the general EPS and the special EPS
(1) Employment through the general EPS
An employer who intends to hire migrant workers should make an effort to hire Koreans for at least 14 days, and after these efforts, the employer should apply for migrant workers at the Labor Ministry’s Job Center. The Job Center will review the qualification of the employment request first, and then recommend a list of migrant workers. Once the employer has chosen migrant workers from the list, a permit certificate will be issued. After this, the employer will fill out the standard Employment Contracts and submit them to the Job Center. The Job Center will submit the list of those workers to be hired to the Human Resources Development Service of Korea (HRD Korea), and HRD Korea will send those standard Employment Contracts to the relevant migrant workers. The migrant workers will sign the Employment Contracts and send them to the employer. The employer will then apply for a certificate of visa issuance to the Ministry of Justice. HRD Korea will invite those migrant workers to Korea and will implement employee training and health examinations, and have them registered for migrant workers’ insurance, and then send them to their employers.
(2) Employment through the special EPS
Overseas Koreans who have acquired a Visiting Employment (H-2) Visa from their Oversea Embassy enter Korea and attend the employment training provided by HRD Korea. After this, they register for employment at HRD Korea or the Job Center, and can then get a job through the Job Center or find a job on their own. Provided, it is possible to get a job in the construction industry only after they have received an Employment Approval Certificate after attending construction employment training. An employer who intends to hire overseas Koreans should get a confirmation letter from the Job Center allowing them to hire overseas Koreans, after making the required effort to hire resident Koreans first, and then hire overseas Koreans through the Job Center or their own channels. For a special EPS, the standard Employment Contract should be signed. The contract period is determined by mutual agreement within the available employment period, and the employment contract becomes valid as of the day when the overseas Korean actually begins to provide his or her labor service. Changing jobs is permissible, with no limitations, unlike general migrant workers.
Conclusion
When looking back on the Employee Permit System that was introduced in 2004, 12 years ago, its system has undergone many changes. First, the short-term period of sojourn has been extended from 3 years to 9 years and 8 months. Second, permitted jobs were also extended not only to non-professional manufacturing but also to the construction and service industries. Third, regarding the duty to hire Koreans first, existing efforts have become a formal procedure that does not assist Korean job seekers in practical terms. As evidence of this, this duty has been reduced from 30 days to only 7 days. Fourth, the number of illegal migrant workers has increased and now numbers more than 208,778 people as of December 2014. This has resulted in social problems, human rights violations, and other issues.
In reviewing these four issues, while Korean immigration policy aims to prevent the permanent settlement of migrant workers and to assist Korean nationals in gaining employment, the effectiveness of these policies is threatened. New government policy is needed to implement more desirable immigration policies and resolve the problems that arise from the differences between current government policies and practical applications.
About the Author:
Bongsoo Jung is the Managing Director of KangNam Labor Law Firm, South Korea
References;
[1] Ministry of Justice, 「Manual for Visa Issuance」, Immigration Office, April 1, 2016; Choi, Hong-Yup, 「A Study on Foreign Workers’ Status in Terms of Labor Law」, Doctoral thesis, February 1997; Nho, Myung-Jong, 「Effects and Improvements of the Employment Permit System 」, Master’s thesis, July 2015; Lee, Ke-Ho, 「A Study on Critical Reviews for the Korean Immigration Policies 」, Master’s thesis February 2013
[2] The Industrial Trainee System operated along with the Employment Permission System until 2006 but was abolished on January 1, 2007.
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