CIP 137 - Flagpoling Transcript
Mark Holthe: Welcome back, everyone, to another episode of the Canadian Immigration Podcast. I'm Mark Holthe, a Canadian immigration lawyer, and I'm here with my faithful co-pilot, Alicia Backman-Beharry. How are you, Alicia?
Alicia Backman-Beharry: I'm doing well, Mark. And yeah, we've noticed that there's some interesting developments with respect to some regulatory changes. And that kind of jogged our desire to try to tackle this topic that's fraught with all sorts of pitfalls, I would say.
Mark Holthe: Absolutely. One of the things that we've seen over the last number of years is the desire for people to choose to flagpole to get their work permits approved or their, you know, extend their status in Canada has gone up in direct correlation with how long it takes to process an application from within Canada. So in this episode, we're going to talk all about flag polling and Port of Entry applications. And this is one of the, well, let's just say, there's good, there's bad, and there's ugly associated with this process. And having worked as a border officer, myself, I saw a lot of people that came down and wanted to renew or extend their work permit, for instance. And not all Border Service officers are super happy about doing this. And so when individuals feel, hey, I can get a quick result, I can, instead of waiting 100 days for my work permit extension application to be processed, I can just go down to the port of entry, and everything is bliss, or individuals who want to get their post-grad work permit quicker, you know, they could file online, and like I said, it could take 100-120 days, or roll the dice at the port of entry. And for sure, Alicia, there's definitely a faster adjudication process. But you may not like the final result. So that's what we're going to cover today. So Alicia, when you think about flag polling, what's the first thing that comes to mind? When someone comes to you and says, Hey, I'm thinking about heading down to the border to flagpole.
Alicia Backman-Beharry: And the first thing that comes to mind is alarm bells going off in my head as soon as they say that, and normally the way that they say it is my friend went down to the border, and they already have their work permit and everything was just fine. So I think I should do it too. And that's normally how it's framed, right? Like we always hear the story of somebody else who through the grapevine was able to do it without negative consequence. And, of course, that's a little bit of a recipe for disaster because everybody's circumstance is unique. And one of the first things to start to consider as well. Okay. Do you understand what flag polling is? And one of those things is and I always ask clients, do you have a valid Canadian visa? If you are from a visa required country? Do you have a valid Canadian TRV? So that's usually where I start. And then I also asked, Do you have a valid US Visitor authorization as well?
Mark Holthe: Exactly. And one of the things that people don't understand to Alicia and we'll talk about some of the practicalities, but to flagpole, you actually have to leave the country. And we see a lot of circumstances where people go straight to the Canadian, the port of entry, and not actually leave and reenter. So present yourself to a US officer. And and so essentially flag polling, if we were to define it is is the act of of leaving Canada and re entering on a new entry, to then seek whatever immigration status, temporary status you're seeking, it could be used to extend your visitor status in Canada, it could be used to, to get, you know, a new work permit or a change of conditions on an existing work permit or to extend a work permit all these kinds of things. But as the increased demand on services has occurred within immigration, so has the increased demand with the Canadian Border Services Agency. And they don't like it because they don't feel they get the actual funding, they need to be able to process all of these applications. And so sometimes you can get some cranky border officers and they're not as interested in facilitating and some ports of entry have restrictions on when you can go to flagpole, they try to confine them to certain days and certain times, others it's just luck of the draw. And if you show up and there's a big lineup, they can send you away and they have a lot of authority. And on that front, I think it's important for people to understand that anything that happens at a port of entry, any of the decisions that an officer makes, how they you know, their authority to even as a Border Service Officer with the Canada Border Services Agency, their authority to issue work permits or issue removal orders and some of the negative aspects all comes from the regulations in the act. And so even the ability to do examinations at the ports of entry, all of those things are all, you know, they're all established. And they're codified in the immigration and refugee protection act and regulations. Now, this podcast is not really designed to go through that in detail. And if you're really ambitious, you can go to, to the enforcement manuals and things like that, where, where a lot of this is described, but the most important thing is that when you go to the port of entry, you it's a new application, and you have to be prepared that, you know, this officer, if they, if they like, what you've presented, and they feel you qualify for the permit, well, they can definitely approve it. But if they have any issues or concerns, they have options, you know, some of the things that they can do is they can further the exam. So basically, if, you know, if they're not satisfied, you have everything that you need, or they have concerns, they can say, Well, I'm gonna allow you into Canada temporarily. But I want you to come back and bring these other documents. So when they further the exam, it's not as if they've admitted you as a, as a legal temporary resident, they basically just delayed it. So they can further they can the exam, they can say, hey, I'm not approving this, in fact, I think you're inadmissible to Canada. And and I think you need to hit the road, you need to get on a plane and head back. And that and they say, We will allow you to voluntarily withdraw your desire to come in. And the officer does that for a number of reasons. One is so that they don't have to, which is the next step, go to a formal writing of of a section 44 report and referring to an admissibility hearing, but sometimes they will allow individuals to voluntarily withdraw their application and give them an allowed to leave form, which gives them a week or so to pack up their stuff and get on a plane and hit the road. So, you know, of course, like I hinted here, the 44 report writing a report on admissibility, and and then referring to an actual hearing. So they have that option or, and this is one we'll get into as well, Alicia, is the ability to issue a removal order. And more recently, maybe you can touch on this one, Alicia. But more recently, I think just here in March of 2024, there were some pretty, pretty interesting changes that occurred within the legislative authorities, that can have some pretty drastic consequences for someone who has received or been issued a removal order by a board of service officer or really any removal order. And, Alicia, do you want to touch on that?
Alicia Backman-Beharry: So it's interesting, I was reading the Regulatory Impact Assessment statement. And so whenever the government is going to change regulations, they have to of course publish in the candidate is that and so they issue also the rationale for why they're making those changes. And we're specifically looking at two sections. So it's regulation 240 3.1, and regulation 240 3.2 of the immigration and refugee protection regulations. And they were published back in February, they came into force, march 15 2024. And I think part of the background of this has been, we had COVID, we had basically nobody going through the borders. So the border officers had this huge respite. And then when the borders started opening, again, now you have a flood of applications, you have massive increase in temporary visitor applications people flowing to and from the border and through the border. And the number of requests at the border has skyrocketed, in addition to which Canada is facing increasing pressure with respect to things like human trafficking, and having not having a porous border and being able to catch criminals at the border, and what's going on with proceeds of crime and illegal entries. And so one of the things that these two new regulations are doing are codifying, and clarifying and simplifying the automatic effect of a removal order in terms of stripping a person, a temporary foreign worker, or a foreign national of any type of their visa status of their electronic Travel Authorization, right. So this applies to people that are visa exempt as well as Visa required. And if they happen to have a temporary resident permit, then those things will be automatically cancelled at the moment that the removal order is made. And so this is now in effect. And then the next part of it under 240 3.2, is that work permits and study permits are also canceled when that removal order becomes enforceable. So, of course, there's a difference between when the removal order is made, and when it's enforceable. And so when it's enforceable is when there's no right to appeal and that person has not done anything to try to challenge that removal order. So, very important. You know, officers could always cancel a work permit or a study permit in the past, but this codifies kind of a blanket authority of always canceling documents. So that nobody's going to have kind of non expired documents floating around that could be illicitly used or sold on the black market. Yeah,
Mark Holthe: that's interesting. And from a practical standpoint, you know, prior to this, an individual who has a valid work permit just because you leave the country, if you've got, say, a week left on it, and you say, Hey, I'm going to go down to the port of entry and get it extended, although it's not technically an extension, it's a new application. Individuals who have those permits, just because you go down to the border and circle around and come back in, it doesn't necessarily invalidate well doesn't invalidate that work permit. And so like Alicia said, These things can still be floating around there. But now, I A classic example would be someone who's on a study permit, who decides instead of filing their post grad work permit online, they're just going to get it faster, because whatever their employer wants to see it, or something like that they don't fully understand the rules around maintain status. And an individual goes down to the port of entry to apply for their postgraduate work permit to get a faster result. And the officer says, Wait a minute, you graduated on this day, and you're asking for your work permit now. And after looking at your phone, I can see that you've you went in for a couple of shifts here, when you were not supposed to be working, that is an authorized work, you have not complied with the terms of your temporary stay, I am going to proceed forward with the removal order. And boom, just like that, with the issuance of the removal order, the study permit is cancelled. And we know the consequences of not having a study permit when you're trying to apply for a postgrad. Even if the officer says, well, you're short a few things. This inadmissibility in the issuance of the removal order can have drastic consequences for people. So more than ever before. There's a lot of danger that exists with attempting this strategy. Even though there's a lot of people out there saying it's so easy, and you know, this is the best way to do it. And we're specifically addressing right now people that are already in Canada on other status, you know, work and study who are looking for work permits, but it also encompasses individuals who come on visitor visas. And at this stage, I won't address right at this point, you'll have to wait a little bit longer in the podcast, and we will address this but but understand it's not a simple straightforward process. And you have to be careful because border officers are not there to facilitate immigration from the standpoint of pure facilitation. They are there as as a mechanism to protect the borders. And there's a significant enforcement mindset built into these officers. And, and so if you don't realize that you can run into a lot of problems. So what I'd like to do, and, you know, having, like I said, worked worked on the border as a border officer, what I want to do is just go through a little kind of a decision tree that can happen for individuals. And you know, I would maybe I'll include this as a little, a little diagram or something a little additional piece within the show notes of the podcast episode. And, and in the description when we put this up on the Canadian immigration Institute YouTube channel. But I just want to walk you through what happens when you are presenting yourself for admission to Canada. Now this is whether you're doing a flagpole, or whether you're coming in first. You know, you're you're seeing things when you fly into Canada when you drive into Canada. And I just want to break it down so that you can understand how this decision making works when someone presents themselves. So right at the right at the start, anytime you present yourself, you arrive at a port of entry. You appear before what we call the PIL, the primary inspection line, and there's a Border Service officer there who makes the first initial determination. And remember, if you are in Canada, and you just go to the Canadian port of entry, you go straight there, you don't present yourself to the US. This is not You're not seeking entry. This is not a situation where an officer has the authority to do anything for you. It's only when you leave and you're coming in and you're presenting yourself fresh after having left the country for for admission. And so, yeah, maybe
I'll just yeah, I'll just pin so just so people understand. We're talking about land borders, right? We're talking about walking up to the US land border and saying, Hey, I'm just wanting to leave Canada to turn around to come back to Canada. And if that person doesn't have authorization to enter the US, then they won't be coming actually into the US and staying for any appreciable amount of time. Maybe maybe they would do that if they had a valid US visa. But where it gets really risky is where they just say hey, I have a valid Canadian visa. And I've come to the EU US border, I'm asking the US basically to turn me around. So the US says, Well, we're going to give you an administrative refusal because you don't have valid authorization to enter the US. But we're not maybe going to take any action against you, we're just going to direct you back to Canada. And they can deal with you there. And I've seen through some of my consults, people who did this, they flag fold, they got that administrative refusal and the direct back from the US, they successfully in that case, got their work permits, and then they went to apply for permanent residence. And they failed to disclose that they had a US refusal of entry, and it slipped their minds. And now Canada, immigration IRCC is now saying, hey, you've misrepresented you fail to declare, so be very careful. So this is where somebody has actually gone to the US, they've probably received that administrative refusal and direct back if they didn't have a US visa, or in some cases, they might have actually entered the US on a valid US visa, and then turned back and came back within a couple days and then made the application.
Mark Holthe: Yes, and that's a great point, Alicia, because we don't know 100% always how the border, the port of entry on the US side is treating your request to turn around, you know, when you appear to them and say, Hey, I'm just here to apply for a Canadian work permit, I don't have a desire to enter the US, they can take a whole host of different actions. And often you don't know exactly what they've done. Now, in many cases, they issue a little yellow slip or a little piece of paper that you then present to the Canadian side to say, yep, you appeared on the US side. But, you know, each port of entry is a little bit different. The larger ports of entry have kind of got this process down. Pretty slick. And usually, in those circumstances, this administrative refusal, this turnaround from the US side, doesn't carry with it, you know, significant consequences. But there are some smaller ports of entry where I remember I've gone down Alicia, some of the smaller ones here in rural, you know, southern Alberta. And I remember that they actually brought the individuals in, they they process their biometrics essentially on the US side and and you know, it not for all intents and purposes, that would have been considered a refused entry to the US, even though they just requested a flagpole. So you have to be very, very careful with that. So the person does that. They present themselves to the border officer at the primary inspection line. And then at that stage, the Border Service officer needs to determine whether or not the person is admissible. Often if you're saying American coming up to the to Canada, or even if you are a, you're a visitor in Canada, and you just go down to the US loop around and come in a border officer at the primary inspection line could determine that, okay, your authorized entry and grant entry. And they don't often stamp passports like they did in the past, but they do track entries and exits via your passport. So they can admit you and you know if it's a visitor when there's no other notation made on your passport, or no other indication of any restriction of time, that entry when you're admitted is for six months. So you have a validity of six months. But an officer, if you say I'm here to apply for a work permit, they can't do that at the primary inspection line. So then at that stage, if they determine okay, you're not yet admissible, we need to refer you to secondary examination, then that's the next step. So at secondary examination, that's where they determine you know, whether or not you meet the eligibility for whatever you're asking where they assess whether you're admissible or not. And once again, if those officers and they're trained to find things, if they determined that you have not complied with any aspect of your temporary stay in Canada, then that can be a problem. But at this stage, if they feel okay, you meet the requirements, and we're happy to issue the work permit, they can then authorize entry at that time. But like I said, if they choose No, you're not yet. You know, we think there's issues here, then that's where things can start to fall off the rails. And that's where all those options are potentially available to them. So, you know, if they determine there might be some in inadmissibility, then the Border Service officer that primary, the primary office that you speak to has the ability to determine whether or not to issue a section 44 report for admissibility. Now, they provide all the evidence in there as to why they think you're inadmissible. They don't make the final decision that goes to the ministers delegate. And then it's at that stage if a 44 report is written, can they have the discretion to do that or not? Then that ministers delegate has then some options that they can do one they can say yep, we determined that this foreign nationals is admissible to Canada and and therefore they can they have available Have them all of the various options that are you know that any of the Border Service officers have available to them, which includes, you know, we're going to allow you entry for further examination to come back. We can you know, detain you. If we feel like you're unlikely to appear, we can allow you to withdraw your application. We can direct you to leave. If you're say a US citizen and you are appearing, we can direct you to head back to the US. They have the ability to issue a temporary resident permit even to overcome the inadmissibility if there's, you know, significant grounds for that to be granted and often is counsel, if we know someone has potentially some issues that could very be very well be part of whatever we're asking that you know, the officer issue a temporary resident permit. And ironically, Alicia, on the books, technically, there is a deposit or a kind of a bond that can be posted. But very, very rarely have I ever, ever seen a border officer do that. So when so so an officer has the choice to do all those things. But if they write a report, refer it to the ministers delegate, the minister delegate has the ability to say, Nah, officer, I don't agree with you, I think this person is okay. And I'm going to authorize their entry. So that's kind of a little bit of a, you know, a process as as to what can happen. And now more than ever, the consequences of things like those removal orders are just even heightened with these new legislative provisions. So what are your thoughts on that, Alicia?
Alicia Backman-Beharry: Yeah, and one of the things that I wanted to make note of as well as when you were given that little scenario of a student who's just finished their program of studies, they want to go down and apply for their post grad work permit. Keep in mind that if an officer does find unauthorized work, or unauthorized study, there is a prohibition for an officer issuing a new either study permit or work permit for six months, since the last date of unauthorized worker study, so if a student goes down, and I've seen this a lot to where a student wants to change the conditions on their study, permit, or get a different type of study permit for a different institution, sometimes they will go down to the border. And if that officer says, Hey, you had unauthorized study, you actually did something you weren't supposed to do or didn't inform immigration properly. They might be in a position where not only their original study permit is cancelled, but they have no possibility of getting a new study permit for six months. Same thing with that post grad applicant, where if they think that they actually worked illegally for their employer before they were authorized to so in that intervening period from the date that they get their completion letter to the date they apply for their PG WEP. There can be no work whatsoever. And that's really confusing for a lot of people given the temporary public policies. But if they did work, and they're you know, offside and they go down to that flagpole, then they are going to be prohibited from getting a work permit for six months, which basically has burned up any hope they ever had of getting a PG WP. So those are things to consider, in addition to all the negative consequences of, you know, being directed back or just getting refused. And the other thing that we often see is that people don't realize they might lose their implied status. Right? Because it is an actual exit, you're coming back in for a new application, if you had maintained or implied status to continue to work? Well, you're going to potentially depending on the circumstances, you might lose that if you leave Canada and then reenter.
Mark Holthe: Yes, no, Alicia, this is where we'll geek out just a little bit and just talk about the actual legislative provisions that allow for someone to apply for a work permit at the port of entry, when, under other circumstances, they are TRV required and must submit that application from outside of Canada through the online process. And there was a memorandum that is still valid and used by the border that was issued back on March 8 2007. To regional directors General for the Border Service Agency. And it's basically the interpretation and application of regulation 190 sub three and 198 of the immigration and refugee protection regulations. And essentially this is the authority because there was a lot of confusion back then I remember we you know, we this we were still relatively new in our careers, Alicia back then. But officers were uncertain because they didn't understand how to process someone who was TRV required and whether or not they even had the authority to issue work permits. Because understand 2002 was when the legislative rolled over, legislation rolled over, and there was a number of different two pathways, I guess even the the ability to issue work permits and extend from within Canada was relatively new at that stage. And so according the way that the actual memorandum reads, it says, and I'm just pulling out just some short little pieces here. It says, according to our 193 F, a foreign national who is from a TRV, required country, and this is key, who has been admitted to Canada as a temporary resident, and is re entering Canada from the US or St. Pierre and Myka, long before the expiry of the period initially authorized for their state is exempt from the requirement to obtain a TRV. So basically, what this is saying is that this is the contiguous country rule, essentially, where if an individual was issued a TRV, and they were validly admitted to Canada, and they went down south to, to the US remember, by land, and they circle around and come back in, then they don't need to have another TRV. If, for example, their first temporary resident, their visa and their passport, let's say times it was issued as a single entry. So even in those circumstances, it would need to necessarily be even a multiple entry visa for someone to go to the US and then be readmitted back to Canada. So then the question becomes, well, if they don't need a visa at that stage, can they apply for a work permit. And so because they're authorized, they're exempt from the requirement pursuant to our 193 F. And so our 198 one indicates the following, it allows a person who is exempt from the requirement to obtain a TRV, which is these types of foreign nationals that we've just talked about, as well as all the others that are visa exempt right off the bat, to apply for a work permit at the port of entry. So taken together are 193 and 198. Allow for a foreign national to apply for the first. And this is key or subsequent work permit at the port of entry, as long as the foreign national has been initially authorized to enter Canada as a temporary resident, and returns to Canada from the US or St. Pierre and Miquelon, by the end of the period initially authorized for their state, and then the extension to it. So this is the combination of provisions that allow for flag polling. And so what are the elements that we're looking at here just to simplify it, so they have to have current temporary residence in Canada. So if you've already fallen out of status, and you're in a restoration period, that's going to be a problem for you. So you can't go to the border and hope you know, for Well, I guess, technically, Alicia, people can take a run at it and take a chance. But, but holding current temporary residents in Canada is something that officers are going to be looking for. And I say that with a caveat, Alicia, because I have had a situation where we've, we've used this in the context of someone who's temporary residence had expired, but they were always initially granted entry legally. So they held that status, then they possess a valid visitor record, visitor status work or study permit or their own maintain status. So they've applied in Canada, and now we're seeking to, for whatever reason, to obtain a work permit at the port of entry. And in fairness, Alicia, we've got a lot of circumstances where someone may be in maintain status in Canada, for example, we've applied for work permit, and then for circumstances outside of their control, their employer says, Hey, I need you to go down for this important meeting in the US. And so they traveled down to the US. And and you know, in many cases, these individuals are more than likely TRV exempt individuals if they're flying down, but it works the same if you're if you're traveling down by land, and then you're coming back in, technically, you have maintain status, because your previous work permit expired. And you were waiting for a decision on it from the inland processing, but on entry or on reentry to Canada, then you have the ability to to apply for that work, you know, work permit, generally speaking, because study permits are pretty narrowly, you know, you know, citizens of the US and, you know, contiguous, like St. Pierre MC alone have the ability to apply directly. I think I can't remember if it's if it's a permanent resident as well, a green card holder of the US has the ability to apply for a study permit, I can't remember. But anyways, there's a narrow group of people that can actually apply for a study permit at the port of entry. So work is usually the the thing, so and then they have to be traveling to the US for the sole purpose of flight polling. Then they're TRV exempt pursuant to 181 98. Or they have a valid multiple entry TRV or an expired single entry TRV and are returning Canada solely from a visit to the US. So you can't go to the US then to Mexico then back to the US and then back to Canada and benefit from the contiguous country provision so it doesn't work that way. So that's essentially you know, who can flagpole if you're, you know, if you're looking at at those provisions at least from a from a legislative standpoint, now, we know Alicia that certain applications are prohibited from being able to, you know, from from you being able to actually apply for them, they can't be processed by, by policy. And, and, you know, just as an example, and we're not going to make this a super comprehensive list, but some of the things that you know, that cannot be processed are bridging open work permits. So you can't, and you want to just touch briefly on a bridge bridging open work permit. Yeah,
Alicia Backman-Beharry: so somebody who has already received approval for stage for some sort of PR application. So often it's They've filed an Express Entry application. And they are, it's finalized, they actually have their acknowledgement of receipt to they have proof that they filed that application, but their work permit is going to expire, probably before their processing of their PRs finalized, so sometime within the next six months usually. And as soon as they have that valid AOR on their Express Entry, or maybe a PNP application, they can apply for a bridging open work permit to say, look, I meet the requirements of having been accepted, here's my acknowledgement of receipt, I've, you know, haven't broken the law haven't worked without authorization, I still have temporary intent, probably dual intent in this case, and you're applying to extend or change over to bridging open work permit. Always be careful if you did have an employer specific category, specifically under the PNPs, where you had an employer specific and it was a restriction on employment. Those are not bridging open work permits, those are bridging closed work permits, but make sure that you're careful with that. So yes, bridging open work permits for sure, make sure that you do not go down to the border and make sure that you maintain your status from inside Canada and continue to work usually while you wait for your PR to be processed.
Mark Holthe: Right. And if we were to add others, study permits and extensions, like I just mentioned, other than if you're a US citizen, or Yes, US PR they're on the list, you can apply for a study permit or an extension of the port of entry. But that's it everybody else you're ineligible I should say residents of Greenland St. Pierre McMullen as well fall under that strange are 214 provision. Seasonal, seasonal agricultural work permits can't be processed at the port of entry. IECs, except for us swap applicants special measures work permits, like the Iranian work permits, and the list is constantly growing. So make sure that you're always double checking to make sure that your work permit is eligible for flag pulling. And then of course, everything you know, all of their work permits under the temporary foreign worker program or the imp are eligible visitor renewals and copr validation. Now, when we talk about flag polling, it's extremely rare that someone's going to be flag polling to get their Koper now with the whole, you know, equal procreation, the inland landing process, which I'll be honest, the border officers absolutely love that, because it's reduced tremendous amount of workload. And this is really what it comes down to, when you're overrun. And you see yourself as the as the outlet, because processing times and in the eyes of the Border Service officers that IRC sees not doing their job properly, which is resulting in these work permits taking forever to process. You know, they get kind of irritated when the the overflow all piles down to the ports of entry, especially when they don't feel like they've got the resources to be able to adequately do it. So that's at the source of the of the stress, the some of the stress points within this whole process. So, so that's kind of a pretty detailed overview of flag polling, and who can apply. But, you know, some of the advantages, Alicia, if you were to identify a few advantages, what would you what would you say are advantages to flag polling? Well,
Alicia Backman-Beharry: I mean, if it works, then it's great, you know, if there are no negative consequences, and if you did happen to get those administrative refusals and direct back from the US, and you remember that you disclose that and all future applications, then if everything worked out well, and you have your document, then you've probably saved a whole bunch of months of having to wait in Canada and get that document. And most of the time, people can continue to work with implied status, depending on what their original status was. But what practically happens is that people lose their ability to continue to drive right, your driver's license for most provinces is tied to your work permit validity. And when you lose your driver's license, you also lose your health care coverage often. And so people are in a precarious situation where maybe they have kids or they have family members who are ill. And so really, if they lose their work permit status, it has serious negative effects for other aspects of their life. And so that's why they might be a little bit desperate and willing to risk a flagpole so that they can hopefully get their status officially reinstated sooner. But it is a very high stakes high risk application. Indeed.
Mark Holthe: And you know, some of the other I guess pauses we could add in is if you're changing employers, right and you're, you're you're switching from one player to another, you can't benefit from maintain status from the standpoint of starting to work early for that employer, generally speaking. Now, in the past, we've had some provisions and some policies where individuals have been able to start working before, there change of conditions, or the new work permit has been issued, subject to certain parameters, which we're not going to get into here. But generally speaking, if you go down to a port of entry, and you're trying to get a work permit for a new employer, while you're going to be able to start work for that new employer, you know, more quickly, and it I need to also address Alicia, this, this whole world of coming as a visitor and then flag polling to get your work permit. This is something that myself, I know, Alicia, in our office, we strongly discourage people from doing. And the reason without getting into a lot of detail is misrepresentation findings by the Border Service officers. And if they feel that you misrepresented on your original visitor visa application, when you came to Canada, then they can they have access to all of those provisions, all of those, those choices for enforcement that we talked about earlier in the podcast. And so we we strongly discourage people from doing that. Some people say, Well, I get faster processing, you know, that if I try to go through the visa office, in my home country, it's easier to get a visitor visa and 10 days and then come to Canada and apply for the work permit at the you know, doing a flagpole than waiting, you know, 100 days to get my work permit. And that may all be fine and dandy. And you may get faster processing, but you may not like the result. So be aware, be really be careful with, you know, with going down that process. And yeah, because there's some huge disadvantages as well to it.
Alicia Backman-Beharry: And just to kind of flesh out what Mark is saying here. So an officer always is looking at whether a person has valid temporary intent. And so if somebody has appeared at the border, originally, let's say two months ago as a visitor, and they said, Hey, I just want to come visit my brother, or whatever it is. And then in that, intervening two months, they do their best to try to find a Canadian employer, they put out resumes everywhere they go for interviews, they find an employer, and then they turn around, they go back down to the flagpole at the border. And they say, Hey, I want to apply for a work permit, because my employer has maybe made an offer of employment under the international mobility program. And maybe they're LMIA exempt, or maybe the employer managed to get an LMIA. And now they come back down to the border. Well, that officer is going to say, Well, wait a minute, two months ago, when you were here, you said that you were intending to come visit your brother. But I'm going to grab your phone. And I'm going to take a look at where you were for the last two months. And it you've spent a whole bunch of time at these downtown offices in Calgary. And what were you doing there? And what are these emails about? And that's where you can risk misrepresentation. Indeed.
Mark Holthe: And so you have to be careful with this. And, you know, like we talked about some other disadvantages include, in addition to these findings of misrepresentations, you know, the work permit can be refused, you know, sometimes, you know, when you're, you're unable to demonstrate that the work, you know, that you're you're supposed to be doing that you have the language ability, the employment requirements, or like we talked about that an officer finds that you've engaged in unauthorized study or work or failed to comply, then they have all of those provisions available to them, you know, section 41 of the Act allows them to, to make a finding of inadmissibility for non compliance, and they love that that's the most popular one for the Border Service officers. So they find misrepresentation. And and yeah, you have to recognize that that is an issue. Also, like we talked about before any adverse consequences on the US side, when you're presenting yourself there. And, and, you know, one that we often kind of gloss over is the fact that an officer can choose to readmit you. So let's say you are on a work permit, and you've applied to maintain your status. Well, basically, you've applied for an extension, and then you decide I can't wait, I need to go to the border, if you then leave the country. And then the officer says, No, you need to let that process at the inland office. I'm not I'm not going to do this. And I'm going to admit you as a visitor. Well, if they do that, Alicia, then what's what's the the, what's the impact on that person's ability to continue working? Now
Alicia Backman-Beharry: they can't work anymore, because it's a new entry. And this time, they're a visitor and of course, a visitor can't work without authorization and you lose your maintain status the instant you leave the country. So that's a very bad case scenario for the employee and the employer. Exactly.
Mark Holthe: All right. We're gonna wrap up this podcast, we could talk for hours and hours on this, I think you get the picture that we are really reluctant to send people down, but there are some best practices potentially. So we're gonna do a rapid fire in the last minute or so here for the podcast. Just some high level things to understand and be aware of. We'll call it our top 10 list of Best Practices for flag polling. And let's just start right off the top one, be prepared, okay, ensure that you have all the necessary documents, everything's organized ready for inspection. And, you know, as well obviously is the means to pay the fee. But the key here is to be prepared, have the documents with you, there's nothing worse than going down there. And the officer says, I want to see this and you don't have it. So you need to be really, really armed, don't just take the bare minimum, make sure you've got everything, all of the essential things that you need. Number to be honest and transparent. Officers do have discretion positively to give you the benefit of the doubt, or to facilitate you, when they feel you're honest and truthful. And you know about situations, but if they find that you are misleading them, or withholding information, and they discover it, they love to crush you. So misrepresentation, you know, in any form can lead to a refusal, or any of those other nasty consequences. All right, number three, be polite and respectful. Alicia,
Alicia Backman-Beharry: this is a big one, I always tell my clients look like things might be going sideways. And you have to keep your cool, and you've got to just understand what is happening. So ask the officer, what determination they are making and why try to get their name if possible, so that you can follow up later. But always, always be polite, be respectful, and you're gonna have to accept what they're telling you, you can definitely argue your position. But make sure not to be belligerent. Yes,
Mark Holthe: number four is directed as much to counselor consultants, lawyers who are advising their clients as it is the client themselves, but you need to know the purpose of what you're asking for. And you need to understand the rules and the requirements so that the person when they're appearing before the Board of service officer, they can properly articulate what they want. And in sometimes this gets glossed over and individuals don't know exactly what they're applying for. And maybe the package of information they've been given is different or presents things differently when the officer than compared to when the officer asks the individual for an explanation of what they're looking for. So make sure that you know that you clearly understand and are able to articulate the purpose of your flagpole trip. And just understanding you know exactly what you're asking for, especially in the world of I MPs and things like that.
Alicia Backman-Beharry: Yeah, and this leads into number five, which is understanding the process. So I always brief my clients, I talked to the employer, but I also talked to the employee who's going down to the border, if it's an employment situation, so that that employee really understands what is in that package, they understand the process, they understand that they don't just go to the Canadian side, they got to leave, they gotta come back, that you have to wait, sometimes you have to wait for five hours, you might sit there or you might not even have an appointment that day. And you might have to try to come back the next day. So understand what's going on and make sure that your client understands.
Mark Holthe: That's perfect. And both of those comments Alicia lead into number six, and number seven, which is avoiding peak times. So try not to go when everybody else is there because officers are overrun, they're rushing, they're busy, and they just don't have you know the time and you can be turned away and be patient. Sometimes you could be there for hours. Number eight follow instructions. So if an officer tells you to do something, then take notes, make sure that you understand clearly what they're looking for. And because if they direct you to have to come back, you want to know exactly what they're looking for. So that you can gather it and return with what they need. And sometimes people are so freaked out, they forget to take notes, they forget to take the you know the name of the officer who they're speaking with, so that they can then properly you know, return and get things as assessed. And even just simple little things like when you're you know, when you're approaching, you know by land if you're driving in following their instructions, which line to join and you know when to approach the you know, the booth and all these kinds of things. So it all leads to making the process and flagpole and giving you the best shot of success. All right, number nine and 10. You want to hit those, Alicia?
Alicia Backman-Beharry: Yeah, and one thing I would say for nine intents and nine is keep the communication clear. And some work. If you're saying take notes, I would really recommend go old school, bring a piece of paper, bring a pen, because in terms of knowing your rights, which is number 10. And we didn't have a chance to talk about it very much today, the thorough a whole bunch of rights that officers have to search your phones and your electronic devices. And they can go through all of your emails that are saved on your device, anything that they can look through your location history right there. They have a lot of power with respect to electronic devices. So keep those electronic devices out of the picture just out of sight out of mind. Have a piece of paper, have a pen, write down those instructions. print off those application packages, have your clients actually have printed application packages that they're presenting on paper and don't have them scrolling on their phones and To understand and brief your clients that they know that if they do have electronic devices, it's subject to search. So be careful about that.
Mark Holthe: Perfect. All right as always, if you're contemplating a flagpole and you're just unsure you can always book a concert with Alicia myself and we can help either talk you back from the ledge and don't do that or help you to be make sure that you're as prepared as possible when you do it so that the result is one that yeah, you're gonna, you're gonna want to receive and not the alternative. Alright Alicia, thanks for for joining in this episode of the Canadian immigration podcast. If you have ideas for future podcast episodes, don't hesitate to reach out to us and you can send me an email at Mark at Canadian immigration institute.com and share your thoughts if you have, you know, something that you want to present on and, and you'd like to join us as a guest we welcome that as well. All right, thanks so much Alicia. And we will catch you guys in the next episode.
