Foreign illegal resident's F6 marriage visa application, acknowledgment of a child born out of wedlock, and nationality acquisition

Recently, a complex case was referred to me from a region, which is still ongoing, and it's uncertain how long it will take to resolve due to various complex factors, including the preparation time needed for necessary documentation.

The client, a Korean husband referred to as A, his Filipina wife, B, who is an illegal immigrant, their child out of wedlock, C, and B's former husband in the Philippines, D, are the parties involved in this case.

B entered South Korea in 2012 on an E6 visa (Entertainment) under the pretext of working as a live singer in a club, which turned out to be a hostess job. Eventually, B fled and worked as a cleaner in motels while being illegally in the country, where she met her current Korean husband, A, and had C.

Recently, B was caught in a crackdown on illegal residents and underwent investigation. Since she had a Korean child, C, who was only a few months old, she was released on a fine (a notification of penalty) and not immediately deported.

C was not registered at birth, was a child born out of wedlock, and was stateless.

In this situation, A asked me to handle everything from the criminal review process to applying for B's F6 (marriage visa) and the child's nationality acquisition.

※ Despite over 7 years of illegal stay, which typically results in a legal fine of 30 million won, we prepared various mitigating documents, underwent review, and ultimately received a reduced fine of 21 million won.

Having handled similar cases before, I went to Daegu with the mindset that after paying the fine, proceeding with a lawsuit for the non-existence of paternity, and filing for the child's acknowledgment and nationality acquisition by acknowledgment, along with applying for an F6 visa would suffice.

※Even if someone is an illegal resident, if there is a humanitarian reason to take care of a child of South Korea, they can stay in the country without having to leave and can apply for an F6 visa. However, in this case, it's not a status change application but a status granting application because there's no residency status due to the illegal residency.

However, when I first met the client's family at the criminal department, I discovered new facts.

B had a legal husband, D, in the Philippines and had not yet divorced him. Moreover, they even had a child together, which, although not directly affecting this case, complicated the situation further.

Upon learning these new facts during my visit to the client's family at the investigative office, the situation became overwhelmingly complicated. C is virtually a ghost in terms of legal identity, with only a hospital-issued birth certificate as proof of existence.

For the acknowledgment of the child in Korea, B must first divorce her previous husband. If the divorce decree or custody decree issued by the Philippine court suggests C could be A's child, those documents can be used as a basis for filing a lawsuit in Korea for the non-existence of paternity to organize the child's family relationship registration, followed by acknowledgment and nationality acquisition by acknowledgment. However, this process cannot always be handled as a non-litigation case. More often, hiring a lawyer is necessary based on the detailed facts of the case.

If C is registered as D's child in the Philippine family registry, it would have been possible to proceed with securing the necessary documents through a lawsuit for denial of paternity or confirmation of non-paternity in the Philippines before proceeding in Korea. However, since C is not registered in the Philippines at all, this was not possible.

After deep discussions with a collaborating attorney, we decided to proceed with the case, banking on the facts that B has no exit records from South Korea, and circumstantially, C is undoubtedly A's child.

This is part 1.

B, being an illegal resident, would ordinarily need to return to her country, but humanitarian reasons are taken into consideration.

Yet, B cannot be left to continue living illegally without any legal residency status, and the same applies to the stateless C.

I discussed this issue with the officer in charge at the investigative department, stating, "B is currently undergoing divorce proceedings in the Philippines. We will also address the matter of the child's recognition through legal proceedings soon. A has recently lost his only blood relative, his mother, leaving B and C as his only family. If B and C were to return to the Philippines, it could lead to the dire consequences A mentioned in his petition. We request that B at least be issued an F1 visa to stay legally during the lawsuit proceedings."

Eventually, the immigration department, after several discussions with the residency department and obtaining special approval from the headquarters, agreed to grant F1 visas to B and C.

If the visa was to be granted strictly according to the guidelines, B would not be eligible for one, as there's no visa category that fits her situation. Special approval through headquarters was necessary because the officers cannot issue visas outside of the guidelines.

For B to be granted an F1 visa, documents similar to those required for an F6 visa application were needed. Since she couldn't obtain a single status certificate due to her ongoing marriage in the Philippines, it was impossible to register the marriage in South Korea, making it impossible to prepare the essential documents like the marriage relationship certificate for the F6 visa application.

I explained the situation, and the residency department official asked for as many relevant documents as possible to be submitted. After spending a night near the immigration office, I prepared as much documentation as possible with A the next day and submitted B's application for an F1 visa.

The review period is uncertain, but at least B's illegal residency status has been addressed for now. The ultimate goal for B was to change her status to F6, so during the review, finishing the divorce proceedings in the Philippines, then proceeding with a lawsuit for the non-existence of paternity for the child, followed by an application for nationality acquisition by acknowledgment, and then applying for a change of status to F6 would be the steps to take.

※If the lawsuit for the child takes a long time, it's possible to extend the F1 visa for lawsuit reasons.

The immediate crisis concerning B has been extinguished. Next, C needs to be granted an F1 visa, but the child is stateless, unregistered in both Korea and the Philippines, and lacks a passport. Without a passport, visa application is impossible. ※ Since C, born out of wedlock while B was married to another man, follows the mother's nationality, even if the father is Korean, C cannot be registered as a Korean national at birth. ​ I told B that C needs a passport for the visa application, so she should schedule an appointment with the Philippine Embassy in Korea to register the birth and get a Philippine passport for C. ​ After confirming the embassy appointment, I returned to Seoul. The subsequent procedures are as follows ​ 1. Apply for C's F1 visa at the immigration office with the Philippine passport 2. Once B's divorce proceedings in the Philippines are finalized, proceed with the lawsuit for the non-existence of paternity for C 3. File C's acknowledgment at the local office and apply for nationality acquisition by acknowledgment at the immigration office 4. Apply for B's change of status to F6 ​ Even if B's divorce proceedings in the Philippines are not concluded, there might be ways to resolve the acknowledgment issue for C in South Korea through legal action. However, B needs a certificate of no marriage (CENOMAR) for the marriage registration and F6 visa application, making it essential for the divorce to be finalized. ​ B told me that the divorce proceedings were ongoing, and the Philippine side kept telling her to wait. Frustrated by the delays, I urged B to pressure her lawyers in the Philippines to conclude the divorce proceedings quickly, even offering to look for a Filipino lawyer myself if necessary. ​ It seems like the beginning of a long and challenging battle. A told me it seems like we will be seeing each other for a long time.

For the procedures and required documents for the birth registration, acknowledgment, and nationality acquisition by acknowledgment of a child born out of wedlock, please refer to the link below.

Birth Registration and recognition report of Extramarital Child Born to a Korean and a Foreign National - Procedure and Required Documents for Acquiring Nationality through recognition