Overseas Korean (F-4 Visa) Residence Status in South Korea
The Big Picture
The Overseas Korean (F-4) residence status is conferred under the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter the “Overseas Koreans Act”). It is granted to foreign-nationality Koreans—namely, persons who once held the nationality of the Republic of Korea, or their lineal descendants, who have since acquired a foreign nationality (Overseas Koreans Act, Articles 2 and 5(1)).
Eligibility Requirements
A. Definition of a Foreign-Nationality Korean
Under Article 3 of the Enforcement Decree of the Overseas Koreans Act, a person falling within either of the following categories may apply for F-4 status:
- A person who once held the nationality of the Republic of Korea by birth and has since acquired a foreign nationality.
- A lineal descendant of such a person who has acquired a foreign nationality.
⚠ Practical note: For ethnic Koreans (Koryo-saram) from the former Soviet Union, including Uzbekistan, the lineal descendants of those who emigrated abroad before the founding of the Korean government are also covered. In practice, however, obtaining the documents needed to prove this lineage is often difficult. There have been cases in which Uzbek nationals only belatedly discovered that, under the relevant statutes, they could not be granted F-4 status.
B. Grounds for Denial (Disqualifying Grounds)
The Minister of Justice will not grant F-4 status in any of the following cases (Overseas Koreans Act, Article 5(2)):
1) Men who have not completed military service. A man who renounced or lost Korean nationality—thereby becoming a foreigner—without having completed his military service obligation. However, where the Minister of Justice finds it necessary, status may be granted from January 1 of the year in which the person turns 41.
2) Risk of harm to the interests of the Republic of Korea. Where there is a concern that the person may harm the interests of the Republic of Korea, including national security, the maintenance of public order, public welfare, or foreign relations.
📌 Relevant precedent: In a case concerning a popular singer who had effectively evaded his military service obligation by acquiring U.S. citizenship, an entry ban was issued, and his subsequent application for an F-4 visa was refused. The court held that the entry ban fell within Article 11(1), subparagraphs 3, 4, and 8 of the Immigration Act and did not violate the principles of proportionality or equality, and accordingly found the visa refusal lawful (Seoul Administrative Court, Sept. 30, 2016, 2015guhap77189).
Required Documents
A. Basic Documents (applying at an overseas mission or immigration office)
| Category | Document |
|---|---|
| Application form | Visa issuance application form (Form No. 17) |
| Proof of identity | Valid passport (original and copy) |
| Photograph | One passport-style photograph |
| Proof of Korean heritage | Documents proving prior Korean nationality, such as a household register (hojeok), removed household register (jejeok), or family relation certificate |
| Proof of foreign nationality | Documents proving acquisition of foreign nationality (certificate of citizenship, passport, etc.) |
| For lineal descendants | Documents proving the prior Korean nationality of a parent, grandparent, etc., together with documents proving the family relationship |
B. Additional Documents (change of status from within Korea)
- Alien registration card or documents proving current residence status.
- Proof of place of residence (lease agreement, accommodation confirmation, etc.).
- Documents proving the nature of the activity, such as a certificate of employment or business registration certificate (where applicable).
⚠ Practical note: Acquiring residence status through the submission of false documents can result in a departure order or forced removal. In one case, a departure order was issued where the applicant had obtained F-4 status by submitting false documents through a Chinese travel agency (Suwon District Court, Dec. 10, 2015, 2015guhap62386).
Application Procedure
A. Applying from abroad (via an overseas mission)
- Submit the visa application form and supporting documents to the overseas mission (embassy or consulate general).
- The head of the overseas mission reviews the residence status and eligibility requirements.
- Notification of visa issuance or refusal.
📌 Note: The Minister of Justice may delegate to the head of an overseas mission the authority to issue visas to persons holding certain residence statuses (Immigration Act, Article 8(2); Enforcement Decree, Article 11).
B. Applying for a change of status from within Korea
- File an application for permission to change residence status with the competent immigration office.
- Review by the Minister of Justice (or a delegated authority).
- Decision to grant or deny permission.
Rights and Scope of Activity After Acquisition
A foreign-nationality Korean who acquires F-4 status enjoys the following rights (Overseas Koreans Act, Articles 10, 11, 12, and 14).
A. Period of stay. The maximum period of stay granted at one time is three years (Article 10(1)). An application for an extension may be filed before the period of stay expires.
B. Employment and economic activity. Freely permitted, provided it does not disrupt public order or economic stability (Article 10(5)). However, simple manual labor (such as day labor) is in principle restricted.
⚠ Practical note: Although F-4 status carries a restriction barring the holder from engaging in simple manual labor, such work is difficult to detect in practice, and some holders do take up day-labor jobs. In such cases, issues such as the offense of obstruction of official duties by deception may arise (Suwon District Court, Apr. 18, 2014, 2014no877).
C. Real estate transactions. A foreign-nationality Korean who has filed a domestic place-of-residence report enjoys rights to acquire, hold, use, and dispose of real estate on equal terms with Korean nationals (Article 11(1)).
D. Financial transactions. A foreign-nationality Korean who has filed a domestic place-of-residence report enjoys the right to use financial institutions on equal terms with a Korean national who is a resident under the Foreign Exchange Transactions Act (Article 12).
E. Health insurance. Eligible for health insurance coverage when staying for 90 days or more (Article 14).
F. Re-entry. A foreign-nationality Korean who has filed a domestic place-of-residence report does not require separate re-entry permission when departing and re-entering within the period of stay (Article 10(3)).
Points to Note When Extending the Period of Stay
A. Grounds for denying an extension
Under Article 16(1) of the Enforcement Decree of the Overseas Koreans Act, an extension of the period of stay may be denied in any of the following cases:
| Ground | Remarks |
|---|---|
| Grounds under Article 5(2) of the Overseas Koreans Act | Mandatory denial |
| Violation of the Overseas Koreans Act or the Immigration Act | Excluded where a one-time administrative fine has been paid in full |
| Sentence of imprisonment or heavier | Discretionary denial |
| Cases publicly notified by the Minister of Justice | Discretionary denial |
B. Key precedents on denial of extension
1) Obstruction of official duties (fine). Where a person received a fine for obstruction of official duties, the court found this to fall within Article 5(2), subparagraph 2 of the Overseas Koreans Act (concern of harm to the interests of the Republic of Korea), and held that the denial of the extension and the departure order were lawful (Seoul Administrative Court, Aug. 11, 2016, 2016gudan52814).
2) Drunk driving. Even where a person received a fine for drunk driving, there are cases in which a departure order was issued on the basis that the person was subject to forced removal under Article 11(1), subparagraphs 3 and 4 of the Immigration Act (Uijeongbu District Court, Jan. 22, 2025, 2024gudan6040; Changwon District Court, June 12, 2024, 2024gudan10059).
3) Tax delinquency. In a case involving roughly KRW 140 million in delinquent taxes, the court held that the denial of the extension was lawful (Seoul Administrative Court, Aug. 12, 2021, 2021gudan7184).
4) F-4 status obtained through false documents. Where F-4 status was obtained through false documents, a departure order may be issued (Suwon District Court, Dec. 10, 2015, 2015guhap62386).
Points to Note on Departure Orders and Forced Removal
A. Legal character of a departure order. A departure order is a disposition issued to a foreigner who is subject to forced removal but is willing to depart voluntarily; it is a lighter disposition than a forced-removal order. The immigration authorities hold broad discretion in this regard (Suwon District Court, Oct. 15, 2024, 2024gudan2228).
B. Possibility of re-entry after a departure order. Even after receiving a departure order, the person may, unless a separate entry ban has been imposed, obtain a new visa upon meeting the requirements and re-enter the country (Seoul Administrative Court, Aug. 11, 2016, 2016gudan52814).
Criminal Liability for Fraudulent Visa Applications
Where an applicant attaches false materials to a visa application and the consular officer in charge, despite conducting a sufficient review, fails to detect the falsity and accepts the application, the applicant commits the offense of obstruction of official duties by deception (Supreme Court, Apr. 28, 2011, 2010do14696). Conversely, where the official accepts the application after only a cursory review and credulously believing it without sufficient scrutiny, the offense of obstruction of official duties by deception is not established.
Key Practitioner’s Checklist
| Item | Point to confirm |
|---|---|
| Eligibility | Whether prior Korean nationality, or a lineal-descendant relationship, can be proven |
| Military service | For men who have not completed military service, whether application before age 41 is possible |
| Criminal record | Whether there is a sentence of imprisonment or heavier, or any record of Immigration Act violations |
| Authenticity of documents | Ensuring the authenticity of all submitted documents (criminal liability attaches to false documents) |
| Managing the period of stay | Filing an extension before the period of stay expires (to avoid unlawful overstay) |
| Scope of employment | Complying with activity restrictions, such as the bar on simple manual labor |
| Place-of-residence report | A domestic place-of-residence report or alien registration is required within 90 days of entry |
The foregoing sets out the practical essentials of the Overseas Korean (F-4) residence status. Because the satisfaction of requirements and the appropriate strategy may differ depending on the specific facts, a careful, case-by-case review is necessary.
The Scope of “Lineal Descendant” in F-4 Visa Applications
1. The Statutory Definition of a Lineal Descendant
Article 2, subparagraph 2 of the Overseas Koreans Act and Article 3 of its Enforcement Decree define a foreign-nationality Korean as follows:
- Subparagraph 1: A person who once held the nationality of the Republic of Korea by birth (including a Korean who emigrated abroad before the founding of the Korean government) and who has since acquired a foreign nationality.
- Subparagraph 2: A lineal descendant of a person falling under subparagraph 1 who has acquired a foreign nationality.
The key question here is how far the scope of “lineal descendant” extends.
2. Generational Scope — Whether Grandchildren and Great-Grandchildren Are Included
A. The text of the statute. Article 3, subparagraph 2 of the Enforcement Decree of the Overseas Koreans Act does not separately limit the scope of “lineal descendant.”
B. The position of the courts — grandchildren are included. In a case in which a Russian-national plaintiff (an ethnic Buryat) applied for a change to F-4 status on the ground that she was the granddaughter of a Koryo-saram grandmother, the Daejeon District Court held as follows:
The term “lineal descendant” under Article 2, subparagraph 2 of the Overseas Koreans Act and Article 3 of its Enforcement Decree includes not only children but also grandchildren. Therefore, even if neither of the plaintiff’s parents is Koryo-saram, the plaintiff—being the granddaughter of a Koryo-saram grandmother—qualifies as a foreign-nationality Korean under the Overseas Koreans Act. (Daejeon District Court, Sept. 16, 2021, 2020gudan1037)
In other words, not only children (first generation) but also grandchildren (second generation) are included among lineal descendants.
C. Great-grandchildren and beyond. Because the statute does not limit the scope of lineal descendant, and because the courts have expressly held that grandchildren are included while stating that “the scope of lineal descendant is not limited,” in theory great-grandchildren and further generations may also be included. That said, there is a practical problem: the more remote the generation, the more difficult it becomes to secure documents proving the blood relationship. This is particularly acute for ethnic Koreans from the former Soviet Union, who must assemble connecting documents—such as birth certificates for each generation—for the entire chain.
3. Document Authenticity Requirements — Apostille Certification
Under Article 76(2), subparagraph 5 and Attached Table 5-2 of the Enforcement Rules of the Immigration Act, a foreigner applying for a change to F-4 status must submit certificates of family relations records or a removed household register, and where the document was issued abroad, it must bear either an apostille from the government of the issuing country or consular certification by the Korean mission in that country.
4. Adopted Children
A. Legal status. Once an adoption is established under the Civil Act, the adoptee becomes a lineal descendant by statutory kinship with the adoptive parents (Civil Act, Article 768). A lawfully adopted child is therefore included among lineal descendants under the Overseas Koreans Act.
B. Full adoption (chinyangja). A fully adopted child is deemed to be a child born in wedlock to the adoptive parents (Civil Act, Article 908-3), and as a matter of course qualifies as a lineal descendant.
C. Practical points:
- The fact of adoption must be proven by an adoption relation certificate or a family relation certificate.
- For an adoption effected abroad, the relevant adoption documents from that country must bear apostille certification or consular certification.
- Submitting false adoption documents may constitute the offense of obstruction of official duties by deception. In one case, a person who was not in fact a lineal descendant of a Koryo-saram forged a birth certificate to obtain Working Visit (H-2) status and was prosecuted (Daejeon District Court, Cheonan Branch, Apr. 18, 2024, 2023godan2994).
5. Children Born Out of Wedlock
A. The general rule. A child born out of wedlock is recognized as a lineal descendant of the legal father or mother through acknowledgment of paternity or maternity (Civil Act, Article 855(1)). Once acknowledgment is made, the lineal-descendant requirement under the Overseas Koreans Act can be satisfied.
B. Before acknowledgment. For a child born out of wedlock who has not been acknowledged, no legal parent-child relationship with the father is established, so it is difficult to be recognized as the father’s lineal descendant. The relationship with the mother, however, is established as a matter of course by the mere fact of birth; accordingly, where the mother is an overseas Korean, the child may apply for F-4 status as the mother’s lineal descendant.
C. Practical points:
- For a child born out of wedlock, the parent-child relationship must be proven through documents such as a birth certificate, certificate of acknowledgment, and family relation certificate.
- For a child born out of wedlock abroad, the documents proving the parent-child relationship under the law of that country require apostille certification or consular certification.
6. Key Practitioner’s Summary on Lineal-Descendant Status
| Category | Qualifies? | Remarks |
|---|---|---|
| Child (1st generation) | ✅ Yes | The most basic case |
| Grandchild (2nd generation) | ✅ Yes | Clearly confirmed by case law |
| Great-grandchild and beyond | ✅ Yes, in theory | Documentary proof is difficult in practice |
| Lawfully adopted child | ✅ Yes | Adoption relation certificate required |
| Acknowledged child born out of wedlock | ✅ Yes | Certificate of acknowledgment required |
| Unacknowledged child out of wedlock (paternal line) | ❌ No, in principle | Possible via the maternal line |
| Claim based on false documents | ❌ No + criminal liability | May constitute obstruction of official duties by deception |
7. Special Issues Concerning Koryo-saram from Uzbekistan and Elsewhere
Under Article 5(2), subparagraph 4 of the Overseas Koreans Act, the grant of F-4 status to nationals of particular countries may be restricted by public notice of the Minister of Justice. For Uzbek nationals, there was a period in which F-4 status could not be granted under a former Ministry of Justice public notice (MOJ Public Notice No. 500-123 of Dec. 31, 2014). In such cases, restrictions imposed by public notice may apply separately even where the lineal-descendant requirement is satisfied. Before applying, one must therefore always confirm the content of the Ministry of Justice public notice currently in force.
Legal Status of F-4 Visa Holders: With and Without a Domestic Place-of-Residence Report
1. Overview of the Domestic Place-of-Residence Report
A foreign-nationality Korean granted F-4 status may, if necessary in order to come within the Overseas Koreans Act, establish a place of residence within the Republic of Korea and file a domestic place-of-residence report with the head of the competent local immigration office (Overseas Koreans Act, Article 6(1)).
⚠ Key point: The domestic place-of-residence report is voluntary, not mandatory. However, a person who does not file the report must complete alien registration under Article 31 of the Immigration Act within 90 days of the date of entry (Enforcement Decree, proviso to Article 7(1)).
2. Legal Status and Rights Where the Report Has Been Filed
A. Deemed alien registration. A foreign-nationality Korean who has filed a domestic place-of-residence report is deemed to have completed alien registration and reporting of a change of residence under Article 31 of the Immigration Act (Overseas Koreans Act, Article 10(4)).
B. Substitution for resident registration — opposability in housing leases. By operation of the deeming provision above, Article 88-2(2) of the Immigration Act applies, so that a domestic place-of-residence report and a report of change of residence are accorded the same legal effect as the resident registration that Article 3(1) of the Housing Lease Protection Act prescribes as the requirement for opposability of a housing lease (Supreme Court, Apr. 11, 2019, 2015da254507; Supreme Court, Oct. 13, 2016, 2015da14136; Supreme Court, Oct. 13, 2016, 2014da218030, 218047).
📌 Practical importance: Opposability arises from the day after a foreign-nationality Korean tenant takes delivery of the housing and completes the domestic place-of-residence report (Suwon District Court, Aug. 16, 2023, 2023na51977).
C. Substitution for the resident registration card in various procedures. Where a resident registration card, an abstract or certified copy of the resident registration record, an alien registration card, or proof of alien registration is required for the various procedures and transactions prescribed by statute, a domestic place-of-residence report certificate or proof of a domestic place-of-residence report may be used in its place (Overseas Koreans Act, Article 9(1)).
D. Real estate transactions. A foreign-nationality Korean who has filed a domestic place-of-residence report enjoys, save for certain exceptions, rights equal to those of a Korean national when acquiring, holding, using, and disposing of real estate within the Republic of Korea (Article 11(1)).
E. Financial transactions. Such a person enjoys rights equal to those of a Korean national who is a resident under the Foreign Exchange Transactions Act when using domestic financial institutions—opening deposit and savings accounts, the application of interest rates, deposits and withdrawals, and the like (Article 12).
F. Health insurance. Where such a person stays within the Republic of Korea for 90 days or more, the person may be covered by health insurance as prescribed by the health insurance statutes (Article 14).
G. No re-entry permit required. Where such a person departs and re-enters within the period of stay, no re-entry permit under Article 30 of the Immigration Act is required (Article 10(3)).
H. Obligation to report a change of residence. After filing a domestic place-of-residence report, a person who relocates must, within 14 days, file a report with the head of the si/gun/gu or eup/myeon/dong of the new place of residence, or with the head of the competent local immigration office (Article 6(2)).
3. Legal Status Where No Report Has Been Filed
A. Non-enjoyment of the various rights under the Overseas Koreans Act. Where no domestic place-of-residence report has been filed, the provisions of the Overseas Koreans Act—Article 9 (substitution for resident registration), Article 11 (real estate transactions), Article 12 (financial transactions), and Article 14 (health insurance)—all take “a foreign-nationality Korean who has filed a domestic place-of-residence report” as their precondition, so these rights cannot be enjoyed.
B. No opposability in housing leases. Where no report has been filed, the effect of substituting for the resident registration does not arise, so the tenant cannot acquire opposability. This leads to the serious disadvantage of being unable to protect the lease deposit in proceedings such as auctions (Supreme Court, Apr. 11, 2019, 2015da254507).
C. Obligation of alien registration arises. Where no report has been filed, the person must complete alien registration under Article 31 of the Immigration Act within 90 days of the date of entry (Enforcement Decree, proviso to Article 7(1)). Failure to do so may result in sanctions for violating the Immigration Act.
4. Limits of the Report — Areas Not Equivalent to Resident Registration
A domestic place-of-residence report does not entirely replace resident registration. In the following areas, it is not accorded the same effect.
A. First-priority eligibility for apartment subscription. Because a foreign-nationality Korean who has filed a domestic place-of-residence report cannot become a head of household under the Resident Registration Act, first-priority subscription eligibility for apartments supplied in adjustment-target areas is restricted (Seoul Central District Court, June 12, 2020, 2018gahap591318).
B. Distinction from overseas nationals. Under current law, an overseas national (a holder of Korean nationality) cannot file a domestic place-of-residence report and may only file resident registration under the Resident Registration Act. A foreign-nationality Korean (an F-4 holder), by contrast, can enjoy the effect of substituting for resident registration by filing the report (Seoul High Court, Apr. 9, 2021, 2020nu54670).
5. Disadvantages of Failing to Report a Change of Residence
Where a person who has filed a domestic place-of-residence report relocates but fails to report the change of residence, the person may lose opposability in the housing lease.
6. Summary — Comparison of Legal Status by Report Status
| Right / effect | Report filed | No report |
|---|---|---|
| Opposability in housing leases | ✅ Available | ❌ Unavailable |
| Substitution for resident registration card | ✅ Available | ❌ Unavailable |
| Real estate transactions (equal to nationals) | ✅ Available | ❌ Unavailable |
| Financial transactions (equal to residents) | ✅ Available | ❌ Unavailable |
| Health insurance (90+ days of stay) | ✅ Covered | ❌ Not covered |
| No re-entry permit required | ✅ Not required | ❌ Required |
| Alien registration obligation | ❌ Not required | ✅ Required within 90 days |
| First-priority apartment subscription (head of household) | ❌ Unavailable | ❌ Unavailable |
7. Practical Points
- After acquiring F-4 status, completing the domestic place-of-residence report as promptly as possible is essential to enjoying the full range of rights—tenant protection, financial transactions, health insurance, and more.
- When relocating, the report of change of residence must be filed within 14 days to maintain opposability in the housing lease (Article 6(2)).
- Because the domestic place-of-residence report certificate substitutes for the resident registration card in various administrative procedures, an application for reissuance should be made immediately if it is lost (Enforcement Decree, Article 13(1), subparagraph 1).
Denial of Stay, Extensions, and Departure Orders for F-4 Visa Holders, by Type of Offense
1. The Basic Statutory Framework
A. Article 16 of the Enforcement Decree — grounds for denying a stay extension. Article 16(1) of the Enforcement Decree of the Overseas Koreans Act sets out the grounds as follows:
| Subpara. | Ground | Effect |
|---|---|---|
| 1 | Grounds falling under Article 5(2) of the Overseas Koreans Act | Mandatory denial (no discretion) |
| 2 | Violation of the Overseas Koreans Act or the Immigration Act (excluding a one-time administrative fine paid in full) | Discretionary denial |
| 3 | Sentence of imprisonment without labor or heavier | Discretionary denial |
| 4 | Grounds in a public notice of the Minister of Justice | Discretionary denial |
B. Basis for forced removal and departure orders under the Immigration Act.
- Subject to forced removal: Article 11(1), subparagraph 3 (risk of harm to public safety) and subparagraph 4 (risk of harm to public order); and Article 46(1), subparagraphs 3 and 13 (a person released after being sentenced to imprisonment without labor or heavier).
- Departure order: issued to a person subject to forced removal who is willing to depart voluntarily (Article 68(1), subparagraph 1).
2. Where a Fine Is Imposed
A. General rule. Because a fine is not a sentence of imprisonment without labor or heavier, it does not fall within the ground for denying a stay extension under Article 16(1), subparagraph 3 of the Enforcement Decree.
B. But Article 11(1), subparagraphs 3 and 4 of the Immigration Act may still apply. Even for a fine, if the content of the offense is found to pose a risk of harm to public safety, public order, or good morals, the person may fall within the category subject to forced removal under Article 11(1), subparagraphs 3 and 4 and Article 46(1), subparagraph 3 of the Immigration Act, and a departure order may be issued on that basis.
C. Key precedents on fines:
- Fine for drunk driving — departure order lawful. The court held lawful a departure order against an F-4 holder who had received a summary order imposing a fine of KRW 10 million for drunk driving with a blood-alcohol concentration of 0.193%, taking the view that drunk driving falls within the entry-ban grounds of Article 11(1), subparagraphs 3 and 4 (Changwon District Court, June 12, 2024, 2024gudan10059).
- Repeated fines for drunk driving — departure order lawful. The court held lawful a departure order against an F-4 holder who, after a fine of KRW 6 million for drunk driving, again received a fine for drunk driving and driving without a license (Suwon District Court, Oct. 15, 2024, 2024gudan2228).
- Fine alone — a case finding abuse of discretion. A departure order based solely on a criminal record of negligent receipt of stolen property in the course of business (suspended indictment) and a violation of the Farmland Act exceeded and abused discretion, the court finding the disadvantage to the plaintiff excessively great relative to the public interest (Incheon District Court, Nov. 5, 2015, 2015guhap50805).
📌 Practical key point: For a fine, the decision is discretionary, weighing factors such as the type of offense, its gravity, whether it was repeated, and the risk of reoffending. Offenses carrying high social opprobrium—drunk driving, drugs, sexual offenses, and the like—are likely to draw a departure order even where only a fine was imposed.
3. Where a Custodial Sentence (Imprisonment Without Labor or Heavier) Is Imposed
A. Falls under Article 16(1), subparagraph 3 of the Enforcement Decree. Where a sentence of imprisonment without labor or heavier is imposed, the stay extension may be denied as a matter of discretion.
B. Article 46(1), subparagraph 13 of the Immigration Act. A person released after being sentenced to imprisonment without labor or heavier falls within the category subject to forced removal.
C. Key precedents on custodial sentences:
- Drug offense — 2 years 6 months’ imprisonment, suspended 3 years. The court held lawful the cancellation of residence status and a departure order, reasoning that immigration administration must respond firmly to curb the spread of drug crime (Suwon District Court, Sept. 22, 2023, 2023gudan10710).
- Sexual violence offense — 2 years 6 months’ imprisonment, suspended 4 years. The court held lawful a departure order against a foreigner convicted of a quasi-indecent act by a relative (Busan District Court, Aug. 17, 2023, 2023guhap20141).
- Arranging prostitution — 1 year’s imprisonment, suspended 2 years. The court held lawful a departure order and cancellation of residence status (Ulsan District Court, Nov. 23, 2023, 2023guhap6117).
- Special bodily harm — 6 months’ imprisonment, suspended 1 year. The court held lawful a departure order (Seoul Administrative Court, July 25, 2024, 2024gudan5202).
4. Suspended Sentences — The Central Issue
A. A suspended sentence is still “a sentence of imprisonment without labor or heavier.” Because a suspended sentence involves the imposition of a sentence in the first place, it falls within Article 16(1), subparagraph 3 of the Enforcement Decree and within “a person released after being sentenced to imprisonment without labor or heavier” under Article 46(1), subparagraph 13 of the Immigration Act (Uijeongbu District Court, Jan. 22, 2025, 2024gudan6040).
B. Loss of effect of the sentence after the suspension period — irrelevant to the Immigration Act. Under Article 65 of the Criminal Act, once the suspension period elapses, the sentence loses its effect. This means only that the legal effect is extinguished; it does not erase the fact of the offense or the fact that a sentence was imposed. Because the Immigration Act does not ask whether the effect of a sentence has lapsed, it is permissible to take into account the very fact that a custodial sentence was imposed (Uijeongbu District Court, Jan. 22, 2025, 2024gudan6040).
⚠ Practical importance: The circumstance that the suspension period has already elapsed cannot serve as a basis for arguing that the grounds for the departure order do not exist.
C. Where a stay extension was granted after the suspended sentence — does protection of legitimate expectations apply? In a case where a departure order was issued after a criminal record was belatedly discovered following the grant of a stay extension, the court reasoned:
- The stay extension was granted without awareness of the plaintiff’s criminal record; where an administrative disposition is defective or its continuation is contrary to the public interest, the disposition may be revoked.
- A stay extension and a departure order differ in their nature, purpose, and intent, so the grant of an extension alone cannot be regarded as an official expression that the authorities would no longer treat the criminal record as a ground for forced removal.
- Accordingly, there was no violation of the principle of protection of legitimate expectations (Uijeongbu District Court, Jan. 22, 2025, 2024gudan6040).
5. Standards for Finding an Abuse of Discretion
A. The discretionary character of a departure order. A departure order is part of immigration administration, and broad discretion is vested in the head of the local immigration office (Article 68(1), subparagraph 1).
B. Factors considered in assessing abuse of discretion:
| Category | Favoring a departure order | Against a departure order |
|---|---|---|
| Offense | Grave offense, repeated offending, high risk of reoffending | Negligent offense, minor matter, suspended indictment |
| Residence | Short stay, record of unlawful overstay | Long stay, established life base |
| Family | No family | Family in Korea (spouse, children, parents) |
| Other | Reoffending after a warning | Deep remorse, settlement with the victim |
C. Consideration of overseas-Korean status. Article 3-2(1) of the Overseas Koreans Act provides that matters not prescribed by that Act concerning entry, departure, and legal status of a foreign-nationality Korean holding overseas-Korean residence status are governed by the Immigration Act. Accordingly, the Immigration Act’s forced-removal and departure-order provisions apply in the same way. That said, the fact of being an overseas Korean may be considered as a mitigating factor. In one case, the authorities issued the relatively lighter departure order rather than forced removal, taking into account the person’s overseas-Korean status, long stay, and support of an elderly mother (Uijeongbu District Court, Jan. 22, 2025, 2024gudan6040).
6. Possibility of Re-entry After a Departure Order
Even after receiving a departure order, unless a separate entry ban has been imposed, the person may—once the entry-restriction period has elapsed and the qualifications and requirements prescribed by statute are met—obtain a lawful visa anew and enter the country again (Suwon District Court, Sept. 22, 2023, 2023gudan10710; Busan District Court, Aug. 17, 2023, 2023guhap20141).
7. Consolidated Summary of Handling Standards
| Type of criminal disposition | Enf. Decree Art. 16(3) | Imm. Act Art. 46(1)13 | Practical handling |
|---|---|---|---|
| Suspended indictment / non-prosecution | ❌ No | ❌ No | A warning is possible |
| Fine | ❌ No | ❌ No | Departure order possible depending on gravity (subpara. 3/4 apply) |
| Imprisonment (actual term) | ✅ Yes (discretionary) | ✅ Yes | Departure order or forced removal |
| Custodial sentence, suspended | ✅ Yes (discretionary) | ✅ Yes | Departure order or forced removal |
| After the suspension period elapses | ✅ Still applies | ✅ Still applies | Cannot argue the grounds do not exist |
How a Criminal Settlement Affects Discretion in Departure Orders for F-4 Visa Holders
1. The Discretionary Character of a Departure Order — Basic Doctrine
Reading together the form and text of Article 68(1), subparagraph 1; Article 46(1), subparagraph 3; and Article 11(1), subparagraphs 3 and 4 of the Immigration Act, along with the content and characteristics of a departure order, the administrative agency holds discretion as to whether to issue a departure order against a person subject to one (Suwon District Court, Oct. 24, 2018, 2018gudan7444; Gwangju District Court, Mar. 14, 2024, 2023guhap573).
The principle of proportionality is the central standard in this discretionary assessment. There must be a balance between the public interest the disposition seeks to achieve and the disadvantage borne by the person subject to it; where the disposition is excessive relative to the substance of the breach and, by socially accepted standards, has clearly lost its reasonableness, it amounts to an exceeding or abuse of discretion and is unlawful (Suwon District Court, Aug. 28, 2024, 2024gudan11093).
2. Whether a Criminal Settlement Is Considered — The General Position
A. The settlement is one factor in the discretionary assessment. The fact of a criminal settlement is one of the factors that may be considered, but it is not a decisive one. The Ministry of Justice’s internal “Screening Decision Standards for Foreigners with Finalized Fines” list among the considerations the particulars of the offense, including post-offense circumstances such as the extent of harm and whether a settlement was reached (Busan District Court, June 14, 2019, 2019guhap21437).
B. The majority view: a settlement alone rarely averts a departure order. The majority of cases hold that the mere fact of having settled with the victim makes it difficult to find an exceeding or abuse of discretion.
Even though the plaintiff amicably settled with all of the victims of the offense of violating the Road Traffic Act (failure to take measures after an accident), that settlement was made in order to pay the civil damages or the criminal settlement money the plaintiff owed, and is not a circumstance worthy of significant weight in the domain of immigration administration. (Gwangju District Court, Mar. 14, 2024, 2023guhap573)
Moreover, where the settlement is reached after the disposition, it is even harder to take into account.
Although the plaintiff appears to have amicably settled with all of the victims after the sentence became final, the timing appears to be after the disposition at issue; this therefore cannot be a circumstance to be considered in assessing the lawfulness of the disposition, which is judged by reference to the statutes and the factual state at the time of the disposition. (Daejeon District Court, June 17, 2021, 2021gudan100535)
3. Cases Where the Settlement Worked in the Person’s Favor — Abuse of Discretion Found
A. Negligent offense + settlement + minor matter — departure order revoked. The Suwon District Court held that a departure order against an F-4 holder who had received a suspended sentence of imprisonment without labor for a negligent traffic-accident offense exceeded and abused discretion, considering that the offense was negligent and the plaintiff had settled with the victim’s bereaved family, that the plaintiff even received a pardon and restoration of rights, and that over roughly ten years of residing in Korea the plaintiff had no notable legal violations (Suwon District Court, Apr. 28, 2021, 2020gudan3377).
B. Impulsive offense + settlement + long stay — departure order revoked. Where an F-4 holder had received a fine, the court found the departure order exceeded and abused discretion, considering that the plaintiff had settled with the victim (who sought leniency), had committed no other criminal acts over a considerable period, and had established a base of life in Korea living with his wife (Suwon District Court, Aug. 28, 2024, 2024gudan11093).
C. Suspended indictment + settlement — departure order revoked. As to a departure order based solely on negligent receipt of stolen property in the course of business (suspended indictment) and a Farmland Act violation (fine of KRW 5 million), the court found an abuse of discretion given that the offense was negligent and minor and a suspended indictment had been granted (Incheon District Court, Nov. 5, 2015, 2015guhap50805).
4. Cases Where the Settlement Was Considered but the Departure Order Was Still Lawful
A. Fatal drunk-driving accident + settlement — departure order lawful. As to an F-4 holder who caused a victim’s death by drunk driving, the Seoul High Court held the departure order lawful even taking into account that the plaintiff had settled with the bereaved family and received a suspended sentence, taking the view that appropriate administrative measures were necessary so that the plaintiff would not harm public safety or traffic order (Seoul High Court, Apr. 3, 2019, 2018nu71375).
B. Signal violation causing an accident + settlement — departure order lawful. As to an F-4 holder who received a fine for causing a traffic accident by running a signal, the court held the departure order lawful even taking the settlement into account (Daejeon District Court, June 17, 2021, 2020gudan103001).
5. The Weight Given to a Settlement — A Synthesis
| Category | Weight given to the settlement | Reason |
|---|---|---|
| Negligent offense (traffic accident, etc.) | Relatively high | No intent; low risk of reoffending |
| Intentional offense (assault, bodily harm, etc.) | Low | Antisocial character; risk of reoffending |
| Settlement before the disposition | Can be considered | Judged by the factual state at the time of the disposition |
| Settlement after the disposition | Hard to consider | Judged, in principle, as of the time of the disposition |
| Victim requests leniency | Somewhat favorable | Reflects a willingness to repair the harm |
| Grave offense | Almost never considered | Need to protect the public interest comes first |
| Repeated offending | Almost never considered | High risk of reoffending |
6. Practical Points
A. A settlement alone is not enough. A settlement, standing alone, rarely averts a departure order; it must always be argued in combination with other favorable circumstances (long stay, an established life base in Korea, whether the offense was negligent, whether it was a first offense, a low risk of reoffending, and the like).
B. The importance of the timing of the settlement. To be considered, the settlement must be reached before the disposition. A settlement after the disposition does not fit the reference point for judging lawfulness (Daejeon District Court, June 17, 2021, 2021gudan100535).
C. The primacy of the public interest in immigration administration. In deciding whether to issue a departure order against a foreigner, the public-interest dimension of promoting the interests and security of the nation is emphasized more heavily than the disadvantage the party will suffer (Gwangju District Court, Mar. 14, 2024, 2023guhap573; Suwon District Court, Oct. 24, 2018, 2018gudan7444). Accordingly, when arguing a settlement, the strategy must be not simply to stress the settlement itself, but to present comprehensively all favorable circumstances—the circumstances of the offense, its gravity, the risk of reoffending, the base of life in Korea, family relationships, and so on.
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