Flagpoling refers to when a visa applicant, a foreign national legally in Canada, will drive to a Canada/US land border and opt not to enter the United States of America, instead informing the American border officers that they wish to return to Canada immediately. They may even say that they wish to flagpole. The expression comes from the act of “driving around the flagpole” at the border. Visa applicants do this because immigration paperwork must be processed at the border by the CBSA when a visa applicant with a pending status enters Canada. It is a method to get visa paperwork processed in an expedited manner but must be used strategically as there is risk to being unprepared and having this go very wrong.
This is due to a provision in the IRPA titled “obligation on entry” which states that
20(1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay
In other words, temporary and permanent residence visa paperwork must be processed at the Canadian border when a foreign national is seeking to enter Canada. As a result, people who are waiting for temporary resident visa renewals, or for their permanent resident visa applications to be processed may “flagpole” (leave Canada and immediately return) to speed up the processing of their visas, even if they have an active visa application. This is often done if the temporary resident visa needs to be renewed with some urgency. As we will discuss further, there are advantages to doing this (the main one being expediency for the foreign national), but this also carries its risks and larger problems, some of which have very negative consequences for anyone travelling through a Canada/US border.
What Visa Holders Use Flagpoling?
There are three categories of visa-holders that can use flagpoling: temporary work permit holders, students, and permanent residents.
As long as an applicant is not exempt, a foreign national may apply for a work permit upon entering Canada. This is laid out in s. 198 of the IRPR which allows for application on entry:
198 (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa.
An individual may not apply for a work permit upon entry into Canada if they are applying on behalf of a foreign national — there are some exceptions to this, but in general, if an employer is applying for the employee, that cannot occur through an application at a port of entry. A foreign national also may not apply for a work permit at the port of entry, if they do not hold the correct medical documentation, or if they are a participant in a youth exchange program.
To apply for a work permit at a port of entry, you need at the minimum the following items:
A student may apply for a temporary student visa at a port of entry as well, but with some restrictions. S. 214 of the IRPR states that:
214 A foreign national may apply for a study permit when entering Canada if they are
(a) a national or a permanent resident of the United States;
(b) a person who has been lawfully admitted to the United States for permanent residence;
(c) a resident of Greenland; or
(d) a resident of St. Pierre and Miquelon.
So only lawful residents or citizens of certain countries can apply for a study permit at the border. An individual applying for a student visa through flagpoling must be able to supply the following to a border officer:
A permanent resident may verify their status by re-entering the country as well. This is covered in s. 20 of the IRPA, which describes obligation upon entry. To verify permanent residence status at a port of entry, you must supply:
Why is Flagpoling Isn’t Suggested
Flagpoling carries with it inherent risks for a couple of different reasons. The first is that it can jeopardize a foreign national’s legal status in the United States, making them inadmissible to that country. This is because many people who flagpole for the sake of their immigration status in Canada, are from nations that require visas to enter the USA. If you arrive at the US border and state that you do not have the necessary visa, then you will be formally denied entry to the United States, even if you state that you just intend to flagpole to the United States border officer. This can be a very big problem for any subsequent trips to the United States that you make because you are always asked at the US border whether you’ve been denied entry to the USA in the past. A previous denial can be used by a border officer to prevent you from entering the USA again. Again, when you go to a border at any time and present yourself for examination, there are always inherent risks associated with this. You need to be properly instructed and prepared, anytime you are making an application at any Port of Entry for any country.
Flagpoling does not appear in immigration legislation, but there is some case law that speaks to flagpoling. This is because it remains unclear whether a person flagpoling who is not admissible to the United States has truly left Canada. A 2014 case, Yang v. Canada discusses the difference in perception of flagpoling in Canada and the United States. In 2021, with the border to the United States still restricted and quarantine upon arrival in Canada still in place, flagpoling is something that carries a much greater risk. At present, it is not advisable, and instead, an individual should wait for their visa to be processed internally within Canada.
Again, it is important to point out that you need to be VERY careful when you are heading to the Port of Entry (aka the border) for any type of application as you are subject to examination and the ability for the CBSA officer to go through your items and person if there are enough grounds for them to warrant such measures. While this might sound extreme, this is still a possibility and something that you should be aware of.
Also, you should be aware that the examination is happening in “real time” and there is no ability for you to be able to control the process or requests such as documentation that you will be submitting (outside of being prepared) or you may not understand that unknowingly you have breached some portion of the Immigration Act and thus have a very uncomfortable result that you are unable to alleviate. Either way, this can all be mitigated if you are prepared.
Lastly, there have been internal memos and policies that have been put forth by CBSA that range from, “Sorry we are not processing today as we have hit our quota” and others which state that you must arrive on certain times and days at particular Ports of Entry. These are changing and are not always public knowledge, which is somewhat concerning for transparency reasons.
Problems with Flagpoling and Some of the Solutions
While flagpoling carries with it some risks for the individuals doing it, it also causes difficulties at the border for the CBSA. This is because visa processing takes significantly more time and resources for border officers than if a person arrives at the port entry either with a valid visa or not requiring one. This in turn slows down traffic at already very busy ports of entry for Canada. As of 2018, the CBSA has restricted flagpoling at the busier Canada/US land borders to only the weekdays Tuesday, Wednesday, and Thursday. Borders with these reduced days of permitted flagpoling are Rainbow, Queenston-Lewiston, and the Peace bridges in Ontario. And Lacolle and St-Armand in Quebec.
Increasingly, there is also a reduced need for flagpoling. IRCC has accomplished this through implied and maintained status while visas are being processed. For example, a student applying for a Post Graduate Work Permit is allowed to work off-campus while awaiting a decision about their permit, provided that they applied before the expiration of their student visa. Measures like this significantly reduce the need for people to have temporary visas (such as student and work visas) urgently processed, and as a result reduce the need for an individual to flagpole at a Canadian land border.
Flagpoling is a somewhat common and legal practice for renewing visas and landing as a permanent resident in Canada. It is, however, not without its risks. Its legal status in case law is somewhat ambiguous leading to the potential for refusal at a port of entry. In addition to this, it may, if you do not hold a US visa (or are not from a country that does not require one), limit your ability to travel to the United States in the future. It also can cause delays at borders for anyone travelling through them, something that the CBSA is attempting to address. Increasingly, through provisions in many visa programs, there is a reduced need to flagpole. This is due to implied and maintained status. The act of flagpoling has the advantage of expediency for processing visas, but it carries with it risks and difficulties for both foreign nationals and government institutions.
It is highly recommended to seek legal advice if you are thinking about flagpoling to know the risks on your Canadian status and if there are alternatives to this. If you have any questions about flagpoling or want to know the alternatives, contact us here at Second Passport and we’d love to help you out!
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