Sort of Legal

I recently returned from a four-night impromptu trip to Havana, Cuba with my dad. A lot of people have since asked “Is it legal to go to Cuba as an American?” or some variation of that question like “I thought you had to have a reason, like business to go to Cuba?”

The answer you’d likely get from most people who recently went to Cuba would be something like “Yes, as long as it’s for one of 12 reasons.”  But as an attorney and someone who notoriously overthinks things, it’s hard for me to give a short answer. Sooooo here’s my full response:

BASIC LAW ON TRAVEL TO CUBA BY US CITIZENS

United States has a longstanding, multi-faceted embargo against Cuba that since 1962 has included travel restrictions in some form (with a brief lapse in the late 1970s). 

Currently, there are not direct restrictions on travel to Cuba by U.S. citizens.  HOWEVER, under most circumstances it is illegal for U.S. citizens to engage in financial transactions in Cuba without a license from the Office of Foreign Assets Control (“OFAC”), an office within the US Treasury Department.  This operates as a de facto ban since there is no way to avoid the restricted financial transactions when traveling.

So, how do Americans travel to Cuba?  There are exceptions.  The exceptions applicable to most ordinary travelers are found in 31 CFR §515.560 et. seq. which permits certain travel related financial transactions are permitted if the U.S. citizen is traveling pursuant to a general or specific license. Obtaining a specific license is a case-by-case transaction.  Obtaining a general license is automatic if the travel falls within one of the 12 categories of valid licenses.  Travelers do not have to apply for a general license or notify the OFAC of their travel plans. 

12 Categories of General Licenses

1. Family visits (see §515.561);
2. Official business of the U.S. government, foreign governments, and certain intergovernmental organizations (see §515.562);
3. Journalistic activity (see §515.563);
4. Professional research and professional meetings (see §515.564);
5. Educational activities (see §515.565);
6. Religious activities (see §515.566);
7. Public performances, clinics, workshops, athletic and other competitions, and exhibitions (see §515.567);
8. Support for the Cuban people (see §515.574);
9. Humanitarian projects (see §515.575);
10. Activities of private foundations or research or educational institutes (see §515.576);
11. Exportation, importation, or transmission of information or informational materials (see §515.545); and
12. Certain export transactions that may be considered for authorization under existing Department of Commerce regulations and guidelines with respect to Cuba or engaged in by U.S.-owned or -controlled foreign firms (see §§515.533 and 515.559).

Transactions Permitted Under General License

The law (31 CFR §515.560(c)) expressly allows those with a general license to engage in financial transactions in connection with the following activities:

1. Transportation to and from Cuba;
2. Living expenses in Cuba;
3. Limited importation of Cuban merchandise for personal use (so no, you cannot start a business importing Cuban cigars, but can bring home a few for yourself);
4. Carrying remittances to Cuba;
5. Processing certain financial instruments (i.e. processing credit cards, BUT as a practical matter you’re unlikely to be able to use a credit card, bring cash!)

NOT SO FAST!  A FEW POINTS OF COMMON CONFUSION

1. Traveling to Cuba for tourism is still expressly prohibited. The law expressly provides “Nothing in this section authorizes  transactions in connection with tourist travel to Cuba.”  So, for example, a trip to Cuba just to lounge on the beach or eat gourmet food is not going to pass the legality test.

The rationale for being harsh on purely touristic activities?  Tourism is a huge source of income (think taxes at airports and hotels and on purchases like cigars) for the Cuban government, which the United States as a policy does not support.

2. The general license categories have very specific meanings.  The general license categories have very specific meanings as used in the law.

I talked to a number of people who said things like “I’m learning about fishing so I’m on an educational trip here in Cuba.”  That’s not quite right.  Just because you can make an argument that something is “educational” doesn’t mean that it qualifies you to travel to Cuba under the “Educational Activities” section (§515.565). 

That section is broken up into two categories: (1) “educational activities,” which include formal educational activities – think coursework you get school credit for; and (2) people – to – people travel – think education for you and Cubans through personal interactions.

The people – to – people exception is the most common authorized reason for travel (and the one we used) and for good reason: it is a bit broader than a lot of the other sections and can include personally planned travel and a lot of types of activities.

In the list of twelve categories above, the citations in parenthesis after each category are where you can find the detailed requirements to qualify for that particular category. 

3. There is a Difference Between Legality & Enforcement. Right now, the general consensus among travelers seems to be that it is pretty easy to travel to Cuba and get back into the United States without hassle about your reason for visiting the country (and that was indeed by experience which I’ll share in the coming days).  You may hear from people whose adventures in Cuba were unabashedly touristic and did not, or at least have not yet gotten in any trouble. 

This doesn’t mean that tourist travel to Cuba is legal, just that the US government is not harshly enforcing the regulations.  However, US Citizens who travel to Cuba for unlicensed reasons could be assessed fines or even criminal prosecution.  It’s analogous to the current state of recreational marijuana – it is still illegal at the federal level but there is a policy of not enforcing that law in states that have legalized it at the state level.

3. It’s the US Government, Not the Cuban Government that Cares. You may have noticed that the law I’ve been discussing is a US regulation.  It’s the US, not the Cuban, government that restricts American (USA)’s travel to Cuba. The Cuban government welcomes tourists…and their money.

HELP WITH YOUR HOMEWORK

The law is complicated and this is not intended to be an exhaustive discussion (or legal advice).  The law also changes so it could be different in February of 2018, a year from now.  The following are a few good resources for those who want to learn more:

• Cuban Assets Control Regulations (CACR) – The applicable regulations themselves.  If you don’t have a legal background this is likely to bore or confuse you.  Skip to one of the other resources below.
• Q & A From the Tampa Bay Times – Solid information in a very readable, easy to understand format.
• FAQ by the US Department of the Treasury – Just updated in 2017 contains a lot of information straight from the source, the government, and some links to additional information.

Like I said, I’ll also be posting my personal experiences which will give you an idea into what the actual process was like in a day or two (sneak preview: surprisingly simple).