Harris Bricken

Buena Vista Social Club. Rum. Cigars. Vintage cars. Spicy meals in outdoor cafes. You have distinct ideas of the sensory overload that awaits you in Cuba, yet at the same time you have no idea what to expect. News reports of thawed relations between Cuba and the United States, capped off by a meeting between President Raul Castro and President Obama, have prompted you to dust off your passport and get ready to book a flight.

 For now, you may want to increase the volume of the Buena Vista Social Club tunes, make a mojito, and turn up the oscillating fan a notch. Unfortunately, U.S. tourists are not yet legally welcome in Cuba.

Last week, on Tuesday, April 14, President Obama submitted to Congress a legally required report detailing that the Administration intends to rescind Cuba’s designation as a State Sponsor of Terrorism (“SSOT”). President Obama’s decision is based on a State Department determination that Cuba met the two pre-conditions for rescinding its SSOT status: (1) Cuba has not provided support for international terrorism during the preceding six months, and (2) Cuba’s Government has provided assurances that it will not support future international terrorism.

 Rescission of Cuba’s SSOT status may take effect as early as May 29.

 However, these monumental developments do not invalidate the existing U.S. embargo on Cuba under the U.S. Cuban Assets Control Regulations (“CACR”) enforced by the Office of Foreign Assets Control (“OFAC”) as well as export prohibitions enforced by the Bureau of Industry and Security.

 Violating U.S. sanctions on Cuba can result in serious criminal or civil penalties – including prison sentences of up to 10 years and fines of up to $100,000.

On December 17, 2014, President Obama announced important amendments to the CACR concerning permissible travel to Cuba. Importantly, the following twelve categories of travel may generally be permitted such that travelers for any of these purposes do not need to file applications and receive specific licenses from OFAC:

  • Family Visits
  • Official Business of the U.S. Government, Foreign Governments, and Certain Intergovernmental Organizations;
  • Reporting/Journalism Activity;
  • Professional Research/Meetings;
  • Educational Activities;
  • Religious Activities;
  • Public Performances, Clinics, Workshops, Athletic Competitions, and Exhibitions;
  • Activity Supporting Cuba’s People;
  • Humanitarian Projects;
  • Efforts for Private Foundation, Research, or Educational Institutes;
  • Export, Import, or Transmission of Informational Materials; and
  • Activities for Authorized Export Transactions.

Even for these twelve generally permissible travel categories, U.S. travelers to Cuba should confirm that their trip satisfies all of the CACR general license requirements to avoid possible OFAC violations. Many of the twelve permissible travel categories require that a traveler’s scheduled activities in Cuba not include free time that exceeds what would normally be expected of a full-time schedule dedicated to the reason for the travel. For example, an individual traveling to Cuba for journalism activities would be expected to have appointments and work sessions related to typical reporting assignments and trips – which would most likely not be characterized as 75% of such individual’s travel time at a beach resort.

Also, individuals traveling to Cuba under the twelve permitted categories are required to maintain specific records related to the trip for five years.

Importantly, tourism travel to Cuba is still illegal for U.S. citizens under U.S. sanctions. The Administration’s actions are significant and important. Based on these efforts, you may be able to enjoy your mojito in Havana – rather than your living room – sooner than you would have thought.