More USFK contractors lose jobs over visas

Dozens out of work after CCK review of SOFA regulations

By ERIK SLAVIN | STARS AND STRIPES Published: February 10, 2009

When Charles Hoelderlin accepted a job as an on-base credit union manager in 2005, Contracting Command Korea approved the move and his Status of Forces Agreement visa.

Nearly four years later, Hoelderlin was forced to leave his post and the country when CCK officials changed their minds about how the regulation governing his visa should be interpreted.

Hoelderlin wasn’t eligible for SOFA, they said, because he spent three months with a legal 2004 South Korean working visa teaching English.

Hoelderlin was told by CCK officials last fall that had he been hired by the credit union from the United States, he could have remained.

A stateside hiring point wasn’t necessary for Hoelderlin and more than 2,000 other contractors, until last year.

"It seems if they gave us good direction to start … I could have gone back to the States and been properly hired," Hoelderlin said. "They’re the ones who created the problem and now … they’re the ones deciding who is going to suffer the consequences. And we’re living at their mercy."

Hoelderlin is one of at least 48 U.S. Forces Korea contractors who have lost a visa — and in many cases, the job that relied on it — since officials began enforcing the new interpretation of residence requirements under the SOFA.

Some who lost their jobs had worked in South Korea anywhere from two years to decades as active-duty servicemembers and contractors.

When Stars and Stripes first asked about visa revocations in October, only 12 contractors had lost their SOFA status. Forty-eight visas had been revoked as of Dec. 1, according to USFK.

A Jan. 22 Stars and Stripes request to the contracting command through USFK for updated figures on SOFA revocation was not answered.

But USFK maintains it is properly enforcing the law.

"Whether an error was made in granting status in the first place is irrelevant, it is our responsibility to ensure that we are in compliance with the SOFA," USFK spokesman Dave Palmer said in an e-mail to Stripes.

However, contractors say they are losing their jobs because of a few people who have reinterpreted a vague portion of the SOFA agreement.

The 48 contractors ranged in profession from fully command-sponsored employees with top-secret clearances to education employees working at no cost to the government.

Others besides the 48 have told Stars and Stripes that the SOFA revocations led them to leave Korea with their families before their files were reviewed.

When Stripes originally wrote about the SOFA revocations in October, USFK said the new enforcement came as a result of an Army Audit Agency audit of Contract Command Korea.

Stripes has since obtained the 2008 audit report. The 34-page report never mentions contractor residence, violations of USFK residence regulations or even SOFA.

Hoelderlin, who is retired from the Navy, was living in Nevada in November 2004 when he took a job with Berlitz language schools in South Korea. He left at the end of February 2005 to work for the credit union.

He says a CCK deputy told him last fall that because he lived in South Korea under a work visa for a few months, he was considered "ordinarily resident" — meaning he intended to live in South Korea regardless of his military employment.

The Status of Forces Agreement mentions, but does not specifically define, ordinary residence.

A USFK regulation’s definition of a United States "ordinary resident" doesn’t say how long it takes to become resident. It requires that they "maintain a residence in the U.S., receive their mail there and have their household goods at their U.S. residence, etc…"

The same regulation defines "ordinarily resident" in South Korea in one sentence as a "person who normally lives in the Republic of Korea." It then uses as an example a person who has lived in South Korea in non-SOFA status for one year.

Since there is no appeal process, deciding who gets contractor status is entirely at the discretion of Capt. John Wodochek and CCK commander Col. Daniel Rosso, according to a PowerPoint presentation from a Sept. 5 briefing given by CCK and later obtained by Stars and Stripes.

If a contractor spends more than a month in South Korea without SOFA status, CCK "determines (the) individual is not ‘ordinarily a resident of the U.S.’ and intended to live outside of the U.S.," the presentation stated.

The presentation added that "determining eligibility for SOFA designation ‘all depends’ … each case is separate and looked at individually," according to comments attributed to David Rathgeber, CCK’s attorney and a former Air Force judge advocate.

Within the presentation documents, Rathgeber said he is barred by regulation from speaking to contractors about their cases. Rosso declined to be interviewed by Stars and Stripes following a request through the USFK public affairs office.

Contractors say the lack of communication and recourse regarding their cases is infuriating.

Few were willing to speak on the record with Stripes, concerned their comments might jeopardize their ability to get jobs with their companies in the future.

"We have been muzzled in responding to this ‘determination’ process," wrote one contractor in an e-mail.

"[A process] that destroys our lives, with CCK, and indirectly employers, silencing us … warned not to say or do anything that may damage the self-professed ‘delicate’ and ‘behind the scenes’ negotiations of our employers."

Another contractor was booted because he obtained a South Korean spousal visa for three months while waiting for a job to open with a USFK-invited company.

He was told his visa was revoked because of his intent to live in South Korea outside of his contracting job.

"My intent? They don’t know my intent. My intent is to do my job," the contractor said.

The contractor still has a home in the United States and pays the bills for an elderly parent to live there, which he said makes him ordinarily resident in the United States and eligible for SOFA.

Others say CCK is making unreasonable documentary requests. One contractor said he has been asked for his and his wife’s tax returns dating back nearly 20 years to prove their SOFA eligibility.

In theory, contractors could be considered "local hires," just like South Korean base workers who do not receive shopping and other privileges.

But those who have tried that route say they have met resistance.

"My company told me being a local hire wasn’t an option," one contractor said. "They didn’t want me to work for the Army and not be SOFA protected."

He said he was told by Wodochek that 60 days back in the States is usually enough time to establish ordinary residence in the United States, in CCK’s opinion. He even signed a lease in the United States.

But when he applied for temporary duty status to work during a military exercise — and then go back to the States after a couple of weeks — he was denied.

The contractor said he never had any intent of remaining in South Korea for reasons other than defense work.

"My company wanted me to work here an additional two more years," the contractor said. "I was laying hay for a future. I’d work overseas, then go back to the company headquarters to apply for something with leadership potential.

"Don’t give us charity," he added, "but give us a fair opportunity (to gain compliance) if people want nothing more than to serve in the Korean theater."

South Korean law allows U.S. citizens living in the United States to apply for Korean work visas. However, it’s up to the sponsor — in this case, USFK through CCK — to complete the approval.

Sam Lacy, an Air Force retiree, said he believes USFK could choose to lay out a path to compliance if that’s what it really wanted.

His SOFA status was revoked as of November after he worked as a computer operator with a secret clearance for a simulated air training system. He had studied Korean at Yonsei University prior to obtaining his SOFA visa.

"I’m not in too bad a situation," Lacy said. "But they just flat-out screwed some people, and they shouldn’t be allowed to get away with it. A lot of people who lost their jobs are retired military, and this comes across as targeting veterans."