Direct Cuba Flights Does Not Mean U.S. Restrictions Were Canceled

Flights to Cuba are full. It’s easy. It’s cheap.  Everybody’s going. Obama lifted the restrictions and Trump didn’t cancel it. Right?

Not so fast. The one thing Obama changed in February of 2016, when he himself went to Cuba, was to allow “People to People” educational visits without a licensed tour guide. You can do such trips on your own, but there are still rules. 

I’ve been traveling to Cuba for seven years under another rule, “Close Family Visit”.  Beginning in late 2009 or 2010, U.S. citizens were allowed to visit close family (the relationship of the U.S. citizen and the Cuban had to be within three generations of a common ancestor) by simply signing an affidavit saying that was true. A “general license” automatically applied. I always take a family tree showing the legitimate relationship with me in case I am ever asked whether I truly qualify.

Once “People to People” visits could be done without a licensed tour guide, I took a few friends to Cuba under that rule. But I read the rule, and I arranged for these people to comply with the rule, by preparing a detailed itinerary showing compliance for each traveler to have in hand, just in case a U.S. Immigration Official asked for it.

You never see a U.S. Immigration Official when you leave. The airline or cruise ship operator is supposed to see that you qualify. They all have a statement explaining the rule and they all require that you check off one of the legal reasons for travel. But that’s as far as their duty seems to extend. You see the Immigration Official when you return.

Over the years, I have not been bothered much when I returned. In 2015 though, I returned to Miami and an official who seemed to be Cuban-American (by birth or family), asked, “Where were you?”  “Cuba.” “Where’s your license?” “I don’t need a specific license. I traveled under a general license. I was visiting family.” “You don’t look Cuban.” “I don’t have to be Cuban to qualify.” “Yes, you do. Where’s your license?” The argument went on for a while, and then he called over another official who agreed with him. I kept insisting that I’m a lawyer and I know the law, and that I qualify for the general license. Finally, they let me into my country. Thereafter, I found myself in front of the same official many times, and I’m not sure whether he knew who I was, but he always just glanced at computer entry sheet and waved his arm for me to pass.

I believe there are some U.S. Immigration Officials who do not really approve of the law allowing easy visits to Cuba. But it is the law. On the other hand, an official has every right to require that one comply 100% with the law. And this is what I’m getting at.

A couple of weeks ago, I was with others in Havana, flying to Orlando on JetBlue. The people who were with me had itineraries. From the talk we heard around us, nobody else had any such thing. People were talking of their “vacation,” of going to the beach, of getting drunk. Six college girls went for four days to see Havana. One guy went overnight just to walk around for the afternoon and evening. I was supposed to meet that guy in Orlando, because I was going to an ATM to get some dollars and I was going to buy his Cuban money. Then I was going to drive him to his house. He and I were next to each other in the Immigration line. I waited for him for 45 minutes, but he never came out. Maybe he had some other problem that caused Immigration to detain him. But I wouldn’t be surprised if he was asked how he complied with the law on his few hours in Cuba and he did not have an answer.

If you go to Cuba, before you just mark “People to People” on the carrier’s check-in procedure, you should read the law and be sure you comply. The “People to People” rule is sometimes called “support for Cuban people” and sometimes called “education” or “educational exchange.”  It’s all the same concept. Before the February, 2016 rule change, these visits were permitted only through officially licensed programs, although, believe me, they did NOT comply with the law.  But they were sanctioned. 

From the U.S. Treasury’s site:

“OFAC has issued general licenses within the 12 categories of authorized travel for many travel-related transactions to, from, or within Cuba that previously required a specific license (i.e., an application and a case-by-case determination).

Travel-related transactions are permitted by general license for certain travel related to the following activities, subject to the criteria and conditions in each general license: family visits; …; journalistic activity; professional research and professional meetings; educational activities; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations or research or educational institutes; exportation, importation, or transmission of information or information materials; and certain authorized export transactions.

      Is travel to Cuba for tourist activities permitted?
No. Consistent with the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), travel-related transactions involving Cuba are only permitted for the 12 categories of activities identified in the CACR. Travel-related transactions for other purposes remain prohibited.”
            What constitutes “people-to-people travel” for generally authorized travel?
OFAC has issued a general license that incorporates prior specific licensing policy and authorizes, subject to conditions, travel-related transactions and other transactions that are directly incident to people-to-people educational activities in Cuba. Among other things, this general license authorizes, subject to conditions, persons subject to U.S. jurisdiction to engage in certain educational exchanges in Cuba either individually or under the auspices of an organization that is a person subject to U.S. jurisdiction and sponsors such exchanges to promote people-to- people contact. Travelers utilizing this general license must ensure they maintain a full-time schedule of educational exchange activities intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities, and that will result in meaningful interaction between the traveler and individuals in Cuba. The predominant portion of the activities must not be with a prohibited official of the Government of Cuba, …, or a prohibited member of the Cuban Communist Party, ….. For travel conducted under the auspices of an organization, an employee, paid consultant, or agent of the sponsoring organization must accompany each group traveling to Cuba to ensure that each traveler has a full-time schedule of educational exchange activities. In addition, persons relying upon this authorization must retain records related to the authorized travel transactions, including records demonstrating a full-time schedule of authorized activities. In the case of an individual traveling under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, the individual may rely on the entity sponsoring the travel to satisfy his or her recordkeeping obligations with respect to the requirements described above. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.565(b).

What constitutes “support for the Cuban people” for generally authorized travel and other transactions?
OFAC has issued a general license that incorporates prior specific licensing policy and authorizes, subject to conditions, travel-related transactions and other transactions that are intended to provide support for the Cuban people, which include activities of recognized human rights organizations; independent organizations designed to promote a rapid, peaceful transition to democracy; and individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba. The traveler’s schedule of activities must not include free time or recreation in excess of that consistent with a full-time schedule in Cuba. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.574.”

From the U.S. Code – See examples:

Note to § 515.565(B)(4):
An organization that sponsors and organizes trips to Cuba in which travelers engage in individually selected and/or self-directed activities would not qualify for the general license. Authorized trips are expected to be led by the organization and to have a full-time schedule of activities in which the travelers will participate.
(5) In addition to all other information required by § 501.601 of this chapter, persons relying on the authorization in paragraph (b) of this section must retain records sufficient to demonstrate that each individual traveler has engaged in a full-time schedule of activities that satisfy the requirements of paragraphs (b)(1) through (3) of this section. In the case of an individual traveling under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, the individual may rely on the entity sponsoring the travel to satisfy his or her recordkeeping requirements with respect to the requirements of paragraphs (b)(1) through (3) of this section. These records must be furnished to the Office of Foreign Assets Control on demand pursuant to § 501.602 of this chapter.
Example 1 to § 515.565(b):
An organization wishes to sponsor and organize educational exchanges not involving academic study pursuant to a degree program for individuals to learn side-by-side with Cuban individuals in areas such as environmental protection or the arts. The travelers will have a full-time schedule of educational exchange activities that will result in meaningful interaction between the travelers and individuals in Cuba. The organization's activities qualify for the general license, and the individual may rely on the entity sponsoring the travel to satisfy his or her recordkeeping requirement.
Example 2 to § 515.565(b):
An individual plans to travel to Cuba to participate in discussions with Cuban artists on community projects, exchanges with the founders of a youth arts program, and to have extended dialogue with local city planners and architects to learn about historical restoration projects in Old Havana. The traveler will have a full-time schedule of such educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba. The individual's activities qualify for the general license, provided that the individual satisfies the recordkeeping requirement.
Example 3 to § 515.565(b):
An individual plans to travel to Cuba to participate in discussions with Cuban farmers and produce sellers about cooperative farming and agricultural practices and have extended dialogue with religious leaders about the influence of African traditions and religion on society and culture. The traveler fails to keep any records of the travel. Although the traveler will have a full-time schedule of educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, the traveler's failure to keep records means that the individual's activities do not qualify for the general license.
Example 4 to § 515.565(b):
An individual plans to travel to Cuba to rent a bicycle to explore the streets of Havana, engage in brief exchanges with shopkeepers while making purchases, and have casual conversations with waiters at restaurants and hotel staff. None of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler's trip does not qualify for the general license.
Example 5 to § 515.565(b):
An individual plans to travel to Cuba to participate in discussions with Cuban farmers and produce sellers about cooperative farming and agricultural practices and have extended dialogue with religious leaders about the influence of African traditions and religion on society and culture. The individual also plans to spend a few days engaging in brief exchanges with Cuban food vendors while spending time at the beach. Only some of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler therefore does not have a full-time schedule of such activities on each day of the trip. The trip does not qualify for the general license.
Note to § 515.565(A)and (B):
Except as provided in § 515.565(b)(5), each person relying on the general authorizations in these paragraphs, including entities sponsoring travel pursuant to the authorization in § 515.565(b), must retain specific records related to the authorized travel transactions. See §§ 501.601 and 501.602 of this chapter for applicable recordkeeping and reporting requirements.
(c) Transactions related to activities that are primarily tourist-oriented are not authorized pursuant to this section."

(Emphasis added by author)

I doubt if ten percent of people subject to U.S. jurisdiction are truly meeting these qualifications.  And I imagine everybody here knows that you’d better not be walking around promoting democracy or offering to help “strengthen civil society,” or promoting “the Cuban people’s independence from Cuban authorities,” because you might run afoul of Cuba’s government’s view of your activities. So, what you need to do is plan to meet with Cuban people to do something, to discuss something.  And you’d better do it constantly during your trip. Of course you want to see Cuba, so you have to somehow go with these Cuban people to see the sites and bring it into the overall plan.  As mentioned in one of the examples above, and in some other regulations, saying you will be talking in general terms to servers in restaurants or people in your lodging is not sufficient. How in the world do you find people to legitimately say you will be discussing something with them before you go?  I don’t know. You may have to go with a licensed tour guide, and then you don’t have to worry about any of this, but it will cost you much more than just paying for your travel, getting your room on AIRBNB and going.

I do not believe that the U.S. government is enforcing this very strongly, but as I said above, if you are asked for your documentation, you had better have it. And I have no idea whether this is an issue that the current U.S. administration is going to tell Immigration to step down on. Trump had said that he was going to cancel all of Obama’s executive orders. Removing the requirement to travel on a “People to People” exchange without a licensed tour guide is one of those executive orders. The executive order did not alter any of the language quoted above, and as you can see, it incorporates the executive order.
Have fun in Cuba, but not too much fun, and be sure to show that you have complied with the law. Don’t let the lax position that your friends have told you they experienced make you complacent, because you might be the one who is detained like the guy I met two weeks ago.

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