Please help us figure out what to do!

[elphyon]

Hello everyone,

I'm hoping to get some experiential/legal advice here. Our situation's a bit complex, so I'll try my best to lay out the facts as plainly as I can.

I am:

A South Korean male, 26 years old.

I have have been living in Canada since 1999, on study permit from 1999 to 2011, and on postgraduate work permit since then.

I met my wife in February last year, we moved in together in July, and got married this January.

She is a Canadian citizen by birth.

We have been putting together an application for sponsorship immigration. Filling out the forms and assembling the evidence to prove our relationship genuine. No trouble so far, but then...

As some of you may know, South Korea has compulsory military service of 2 years. Foreign travel is severely limited for male citizens over 18 who haven't performed this service.

I haven't performed this service, and have no intention to, seeing as I have lived literally more than half my life in Canada, and also because I believe that the best shot at a happy, meaningful life for my newfound family is right here.

I thought, since my South Korean passport is valid until 2014.12.31, we could send the application ASAP and have my PR come out before that expiry date (in which case I can indefinitely delay entering military service until I receive my citizenship).

Couple weeks ago I got a call from the consulate notifying me that I must return to Korea within the next month, and apply for a one-time extension for foreign travel that is good for a year. (This extension is separate from my passport)

Now, if I don't go back, I will be criminalized in Korea. I have family in Korea, and they want me to return, apply for this extension, and somehow sort out the PR within the year that it would give me, assuming I get the extension. They want this because they want me to be able to visit Korea, in case of family emergency, etc.

My questions to you:

If we submit the sponsorship application now, and if I chose not to return to Korea by the end of April, would it matter that I became a criminal in Korea for this reason, after the application was submitted?

Furthermore, if my Korean passport was somehow made invalid during the application process, how would that affect the status of our application?

My wife is panicking and doesn't want me to go back, especially since the tension with North Korea is rising, and I don't particularly want to go back either, since I don't see how this one-year, one-time extension will make any difference long-term. As far as I know, the inland sponsorship application will take approx. 14 months if all goes well, so I would be criminalized in Korea anyway, come April 2014.

Much thanks for your advice,

Elphyon

 

[SenoritaBella]

1. If I'm not mistaken, I believe for inland sponsorship it is recommended that you remain in Canada during the process? May be someone can shed more light.
2. A criminal record may be problematic. Better to find out the equivalent of that crime in Canada and the sentence. Speak to a lawyer.
3. Why don't you go back and request this one time extension? This way you avoid a criminal record.
4. How about applying for outland sponsorship instead? Are the processing times different?

 

[canadianwoman]

If you go back to Korea to get the one-year extension, will you be seized by the police in Korea and forced to do your military service? Or will some note be put on your file or passport, saying you must not be allowed to leave until you have done the military service?
Or will the Korean authorities just give you the one-year extension and let you leave Korea and go back to Canada?

 

[elphyon]

Hi SenoritaBella,

Thanks for the response.

1. Yes, and that is one of the reason why I'm reluctant to go back.
2. I don't believe there is a equivalent crime, because military service in Canada is voluntary.
3. Because it only grants 1 year, and since it's unlikely I would receive PR in that period of time, I will be criminalized in Korea next year even if I get the extension.
4. I will be subjected to military service if I move back back to Korea for anything more than a few weeks. The outland processing time is few months quicker but my wife and I have just started building a life together and do not wish to be separated.

Another issue of course is that should I enter the service, I will be bullied mercilessly for not being "entirely" Korean.

 

[elphyon]

If you go back to Korea to get the one-year extension, will you be seized by the police in Korea and forced to do your military service? Or will some note be put on your file or passport, saying you must not be allowed to leave until you have done the military service?
Or will the Korean authorities just give you the one-year extension and let you leave Korea and go back to Canada?

Hi Canadianwoman, thanks for the response.

No, I won't be seized as long as I return before the end of the April.

I will be notified to have my physical exam if I stay in Korea for longer than a few weeks, after which they'll assign me a date to report to the training camp.

If I get the permit, then I can return to Canada, but even then would have to go back by the end of next April, or else be criminalized. (Also, I'm not sure leaving Canada for any reason during inland application is a good idea.)

Yes, without this permit, my passport will flag at the airport and I will be denied boarding on any international flights.

 

[Rob_TO]

If we submit the sponsorship application now, and if I chose not to return to Korea by the end of April, would it matter that I became a criminal in Korea for this reason, after the application was submitted?

If you haven't lived in Korea for at least 6 months since you turned 18, I don't think its even required that you would need a criminal check from Korea in your PR application. So the issue of having a warrant or criminal record here, might not even be communicated to CIC. Also, CIC is looking for criminal records involving crimes of a violent or dangerous nature, that could mean the applicant would pose a risk to other Canadians. I don't think not serving in the military would be of much concern. Though I don't know for certain here, just basing this on common sense.

I thought, since my South Korean passport is valid until 2014.12.31, we could send the application ASAP and have my PR come out before that expiry date (in which case I can indefinitely delay entering military service until I receive my citizenship).

You better be careful of the rules here. Just getting your PR will not get you out of your military responsibility. As far as I know, even if you get PR here and in another few years Canadian citizenship/passport, you are STILL required to do your military service in Korea before renouncing Korean citizenship. The only way to renounce Korean citizenship without doing military, is if you renounce before your 18th birthday.

So be prepared that if you're successful to get PR and eventually citizenship here while in Canada, you may not be able to return to Korea ever or else risk being seized at the airport to fulfill your 2-years service, until after age 35. Even if travelling on Canadian passport, since they have your name/info from your original family registry. This problem sounds like it will be increased if you don't go back for your temporary extension, and actually have a warrant or criminal record in Korea. In this case you would face a much higher chance of being arrested on return for any reason, indefinitely.

For Koreans by birth that have spent half their lives in other countries, I've read you can apply for military exemptions for short visits to Korea. So this would allow you to return to visit family occasionally as long as you clear it with the Korean embassy beforehand for each trip, or find a way to get a permanent exemption. IMO I would return for the 1 year exemption and do it by the book. I wouldn't risk having a criminal record in Korea, else you may find yourself pretty much unable to return there for the rest of your life.

That all being said, i'm not expert in the matter and I HIGHLY suggest taking more with the Korean embassy where you are, or a Korean immigration lawyer who has more experience here.

 

[SenoritaBella]

Hmm... hard one for sure.
Perhaps you can consider applying outland instead for these reasons:
1. shorter processing times
2. you can still live with your wife in Canada and do outland sponsorship
3. you have a right to appeal in case the application is denied(not possible with inland sponsorship)
4. you can travel during the process
5. if you have to return for military service before your PR is approved, you can travel without jeopardizing your sponsorship. Find out if you have to inform the visa office of your military service and update your background declaration form.

About bullying, perhaps you may need to discuss this concern with your supervisor, find out ways to deal with it and hopefully it is not something that is tolerated in the military.

If you have at least 1 year of skilled work experience, why don't you also apply for permanent residence under the Canadian Experience Class? You are allowed to have more than one application. It may be faster than sponsorship. This way, which ever gets to passport request first, you proceed with.

As you said, if you don't go back by end of April(to ask for extension), then you will be criminalized and passport flagged. You also won't be able to renew your passport, right?
You need to wait at least 2 years after obtaining PR to be eligible for Canadian citizenship(you will get half credit for each day spent in Canada that you were not a PR within the 4 year period preceding your application). How will you travel during this time with an expired passport?

In my opinion, it is better to return and obtain the extension.

 

[elphyon]

Thanks for the reply, Rob-To. Good to know about the criminal record. I had the check done via local police couple weeks ago, which came back clean. Only if I could argue my case with common sense! I've lived in Vancouver for the past 14 years, have a elementary and high school diploma from Canadian schools, a Bachelor's from a Canadian university, and am married to a Canadian wife. I hope whoever takes our case at CIC will take that into consideration.

What I meant was that with PR, I could apply at the Korean consulate here to delay entering military service until either until I receive citizenship . But that is neither here nor there, since it seems unlikely that I will get PR before I am criminalized in Korea (either April this year or next year). My chief concern at this stage is whether or not my passport will remain valid in case Korean military charges me for dereliction/avoidance of duty, and if it is made invalid, how that will affect my immigration case. I'm told you will eventually be asked to submit a VALID passport before you can be issued PR.

"For Koreans by birth that have spent half their lives in other countries, I've read you can apply for military exemptions for short visits to Korea. So this would allow you to return to visit family occasionally as long as you clear it with the Korean embassy beforehand for each trip, or find a way to get a permanent exemption."

Now that's interesting to me, but I can't seem to find any official information on that from the consulate or the army's website. Do you recall by any chance where you've come across it?

 

[elphyon]

Hmm... hard one for sure.
Perhaps you can consider applying outland instead for these reasons:
1. shorter processing times
2. you can still live with your wife in Canada and do outland sponsorship
3. you have a right to appeal in case the application is denied(not possible with inland sponsorship)
4. you can travel during the process
5. if you have to return for military service before your PR is approved, you can travel without jeopardizing your sponsorship. Find out if you have to inform the visa office of your military service and update your background declaration form.

If you have at least 1 year of skilled work experience, why don't you also apply for permanent residence under the Canadian Experience Class? You are allowed to have more than one application. It may be faster than sponsorship. This way, which ever gets to passport request first, you proceed with.

As you said, if you don't go back by end of April(to ask for extension), then you will be criminalized and passport flagged. You also won't be able to renew your passport, right?
You need to wait at least 2 years after obtaining PR to be eligible for Canadian citizenship(you will get half credit for each day spent in Canada that you were not a PR within the 4 year period preceding your application). How will you travel during this time with an expired passport?

In my opinion, it is better to return and obtain the extension.

Since my graduation, I've been earning a living as a freelance writer. I have worked on contract in office/corporate environment, but I don't think that qualifies me for the CEC.

I did not know about one being able to put in an outland application while residing in Canada. I will look that up for sure.

The extension is only good for once, and for one year, so I'm not sure whether that will matter, if at all. If I return to Korea and get it, I will be criminalized and be unable to go back April of the next year, unless I can obtain PR during the one year period somehow.

What's pressing me and my wife at this point is that we realistically have only 10 days or so to determine the course of action that's best for us.

 

[Rob_TO]

What I meant was that with PR, I could apply at the Korean consulate here to delay entering military service until either until I receive citizenship .

Remember even after receiving Canadian citizenship, you are not automatically exempt from the Korean military service.

Here is a good summary of the situation: http://askakorean.blogspot.ca/2012/06/military-draft-quandary.html

I'm told you will eventually be asked to submit a VALID passport before you can be issued PR.

In our case, we applied outland through the former Seoul visa office (now Manila). We included a photocopy of Korean passport when submitting the application, and that was it for the process. Since Korea is visa-exempt they never requested the physical passport itself.

So the only time we really needed the passport after, was when my fiancée "landed" in Canada as a PR, and the passport was needed to show the Canadian immigration officer.

You should inquire as to passport requirements for the inland process, and if you could get PR without having a valid passport at the time PR is issued. I'm really not sure here.

However if you let your passport expire, how would you ever get it renewed?? Sounds like the Korean embassy in Canada will refuse to do it until you return to Korea to clear up your situation, but you won't be able to travel on an expired passport.

Now that's interesting to me, but I can't seem to find any official information on that from the consulate or the army's website. Do you recall by any chance where you've come across it?

Sorry can't remember exactly where I read this. I have a bunch Korean friends here in Toronto, so have had many conversations on this topic. Just to a quick google search of the topic and tons of info comes up.

 

[MadeInCanada]

I don't know if it is possible, so it is really only a suggestion, but... What if you return, get the year extension and while you are there renew your passport?? Again, I am not sure that would work but thought it might help you.

Also, be advised that an interview is a possibility for an outland application, even if you are currently in Canada. Which would then mean you would have to return to attend it or possibly forfeit the PR application(they will make a decision based on the information they have).

Hoping it all works out for you.

Take Care

 

[Korea2Canada]

http://oneclick.law.go.kr/CSM/OvCnpRetrieveP.laf?csmSeq=505&ccfNo=4&cciNo=6&cnpClsNo=1

Military service
Persons who are staying or residing in foreign countries may postpone the draft physical, conscription, or call of persons.

An overseas Korean subject to compulsory military service shall be deemed to have obtained permission to stay on an overseas trip till he reaches 35 in case he falls under any of the following cases before he turns 25:
① Where he or his parents have acquired either a permanent resident status (excluding any conditional permanent resident status) in a foreign country or an indefinite stay status or a long-term stay status of not less than 5 years in a country that does not enforce any permanent resident status system and have thereafter resided in the nation to date;
② Where he or his parents have acquired such resident statuses as special permanent residents or permanent residents in Japan;
③ Where he was born in a foreign country and has acquired the nationality or citizenship of country of birth and has been residing overseas to date with his parents;
④ Where he or his parents emigrated to any foreign country in accordance with the 「Emigration Act」and has been residing overseas to date; or
⑤ Where he left Korea along with his non-expatriate parents when he was under the age of 18 and has been residing overseas with them to date.

 

[elphyon]

I don't know if it is possible, so it is really only a suggestion, but... What if you return, get the year extension and while you are there renew your passport?? Again, I am not sure that would work but thought it might help you.

Also, be advised that an interview is a possibility for an outland application, even if you are currently in Canada. Which would then mean you would have to return to attend it or possibly forfeit the PR application(they will make a decision based on the information they have).

Hoping it all works out for you.

Take Care

Hi, MadeinCanada (I almost wrote China), thanks for responding.

They won't renew it past the current valid date, generally they don't issue passports that are valid for longer than the travel permit.

That's a really vital point about outland application and interviews... I suppose that puts it out of option for us.

 

[elphyon]

http://oneclick.law.go.kr/CSM/OvCnpRetrieveP.laf?csmSeq=505&ccfNo=4&cciNo=6&cnpClsNo=1

Military service
Persons who are staying or residing in foreign countries may postpone the draft physical, conscription, or call of persons.

An overseas Korean subject to compulsory military service shall be deemed to have obtained permission to stay on an overseas trip till he reaches 35 in case he falls under any of the following cases before he turns 25:
① Where he or his parents have acquired either a permanent resident status (excluding any conditional permanent resident status) in a foreign country or an indefinite stay status or a long-term stay status of not less than 5 years in a country that does not enforce any permanent resident status system and have thereafter resided in the nation to date;
② Where he or his parents have acquired such resident statuses as special permanent residents or permanent residents in Japan;
③ Where he was born in a foreign country and has acquired the nationality or citizenship of country of birth and has been residing overseas to date with his parents;
④ Where he or his parents emigrated to any foreign country in accordance with the 「Emigration Act」and has been residing overseas to date; or
⑤ Where he left Korea along with his non-expatriate parents when he was under the age of 18 and has been residing overseas with them to date.

Thanks for the link, Korea2Canada.

Unfortunately, none of those cases apply to me.

I moved to Canada with my mother in 1999, as a last-ditch escape from my abusive father, but she shortly went back to Korea because he had cancer and someone had to look after my sister. I've stayed in Canada ever since as a student, and then as a worker.

 

[Rob_TO]

That's a really vital point about outland application and interviews... I suppose that puts it out of option for us.

Keep in mind that you have 2 choices for outland applications
1. Processed as Korean citizen. Your application would be processed in Manila. And IF an interview is required (they are usually waived), you may have the option to do this interview in Manila instead of Seoul.
2. Since you have lived legally here in Canada for at least 1 year, you can choose Canada as your outland visa office. Here i believe application would be processed in Canada or USA, and likewise any potential interview would be in Canada or USA office (not sure the specific details here).