Prospective temporary foreign workers in addition to deciding which work permit program they will apply to also need to decide how they will apply for their work permit. There are generally two options. The first is to apply either online or at a Visa Application Center to Immigration, Refugees and Citizenship Canada (“IRCC”) and wait for it to be approved before travelling to Canada. The second is to submit the application to the Canada Border Services Agency (“CBSA”) when entering Canada. There are advantages and disadvantages to each approach.
The Initial Work Permit
Foreign nationals who need a temporary resident visa to visit Canada must submit their work permit applications either online or at a Visa Application Center before they travel to Canada. However, those who do not require a temporary resident visa to visit Canada can apply in person at a port of entry. There are many advantages to applying at a port of entry, and it is typically the preferred approach. First, while IRCC’s work permit processing times range from two weeks to several months, the CBSA will process work permits on the spot. Second, many applicants prefer interacting face to face and speaking with the person who is adjudicating their application. While IRCC will often simply refuse a work permit application because of missing or vague information, the CBSA will essentially interview the person to fill in the gaps.
There are, of course, disadvantages to applying for a work permit in person at a port of entry. First, some people simply do not interview well, especially if English or French is not their first language. Second, if CBSA refuses the work permit application, the person will likely be told that they have to go back to their country of origin, and be denied entry to Canada. If they are lucky they could be granted entry as a visitor. If they are unlucky the CBSA may ban them from trying to enter Canada for one year if they determine that the person is unlikely to leave Canada by the end of their authorized stay or if they believe that the person will work without authorization. If they are very unlucky, the CBSA might determine that the applicant misstated or omitted something material in their work permit application, and take measures to ban them from entering Canada for up to five years.
It is important to know that for some work permit applicants there is a middle ground between applying online and submitting the application at a port of entry. Employers who wish to hire foreign workers may be eligible to obtain an opinion from IRC’s International Mobility Workers Unit (“IMWU”) that they are exempt from the requirement to obtain a Labour Market Impact Assessment. IMWU will issue such opinions to employers who wish to hire foreign nationals who do not need a temporary resident visa to enter Canada and who are outside Canada. If IMWU issues a positive opinion, then the foreign national can present their work permit application in person to CBSA and be confident that their work permit will be issued. The IMWU processing time is typically between 5 and 30 days.
Subsequent Work Permits
People who are inside Canada and want to keep working beyond the expiry of their work permit also have options for where to apply. The two most common are either to apply online to IRCC for a work permit extension or travel to the United States and apply to CBSA for a new work permit upon re-entry. This is sometimes known as “flag-poling” or “side-stepping.”
There are several advantages to applying online. First, applicants who do not interview well can avoid an in person refusal, with some of the corresponding possible negative consequences described above. Second, work permit extension applicants can continue to work during IRCC’s processing of their work permit extension application even if their status in Canada expires during that processing, as long as they do not leave Canada. Finally, applicants do not need to risk being denied entry to the United States, which is especially beneficial to those who would first need to apply for a US entry visa.
However, the big, and deciding, disadvantage for most people with applying online is time. IRCC’s work permit extension processing time is currently over 100 days. Even if someone can stay in Canada beyond the expiry of their work permit while IRCC is processing the application, not all provinces will easily extend medical coverage or drivers licenses. For this reason, more and more people are choosing flag-poling / side-stepping over applying online.
Statistics
The following PDF shows the number of work permits that the Canada Border Services Agency issued from 2019 – 2022, broken down by month and port of entry.
A Growing Issue with Flag-Poling
Canada’s Immigration and Refugee Protection Regulations provide that someone with valid temporary resident status in Canada generally does not need a visa to return to Canada from a trip to the United States. The result is that such individuals can apply for work permits when they re-enter Canada. A Chinese national living in Beijing cannot apply for a work permit at Vancouver international airport. They are supposed to apply for a work permit online, which is currently taking around three months to process. If, however, that same person arrives in Canada as a visitor, an application whose processing time is 2 weeks, and if they have a United States entry visa, then they can simply drive to the United States and apply for a work permit upon re-entry, avoiding the lengthier processing times.
The CBSA has, in a way, been a victim of its comparatively exceptional customer service. The number of people flag-poling has been steadily increasing in recent years, and CBSA is starting to take measures to reduce flag-poling. In Ontario, flag-poling is only permitted from Tuesdays – Thursdays. In British Columbia, the CBSA has started furthering the examinations of those seeking to flagpole if the port of entry is too busy at the time.
The CBSA has also started to take measures to directly dissuade people from arriving in Canada as tourists just to flagpole. There have been many recent incidents of people who came to Canada stating that they were tourists, did not disclose when they arrived in Canada that they had job offers or that they intended to flagpole, and then subsequently applied for work permits at the Canada – US land border a few days later. The CBSA in many, many cases has determined that this constituted misrepresentation, and have referred them to the Immigration and Refugee Board for a hearing on whether they should be banned from Canada for five years.
In Singh v. Canada, 2021 FC 959, an Indian national arrived in Canada as a visitor. In his visitor visa application he stated that the purpose of his visit was to visit family. Six months later, he submited a visitor record application. He said again that the purpose of visit was to visit family. His application was approved. One month before his visitor record expired, he received a job offer, which he accepted. The company started the process for a LMIA. Mr. Singh submitted another application for a visitor record. He said that he wanted to spend time with family. While it was in process, the LMIA was approved. Three days later, a new visitor record was issued. When he went to flagpole CBSA referred him to the Immigration Division for an admissibility hearing. The Immigration Division stated that it was clear that Mr. Singh had a secondary purpose of visit that was not disclosed, and determined that he was inadmissible to Canada. The Federal Court upheld this decision, writing:
Applicants are required to make full disclosure and it is the role of the officer who examines the application to decide what is relevant and what weight to give to any particular fact that is disclosed. The system simply could not work if applicants, no matter how honest, were allowed to decide what is relevant for their application.
Conclusion
As long as applying in person remains a faster way of obtaining a work permit people will continue to prefer it over applying online. However, applicants should understand the benefits and risks of each approach, especially as CBSA continues to take measures to try to reduce flag-poling.