U.S. Law and Travel to Cuba in 2010

A large ferry is docked at the waterfront with multistory buildings in the background.

Havana, Cuba. Photo © Rinaldo Wurglitsch, licensed Creative Commons Attribution.

Cuba has no restrictions on international travel. Moon Cuba provides complete travel information for all travelers, regardless of origin. However, the U.S. government does. Most yanquis harbor the false impression that it’s illegal for U.S. citizens to visit Cuba; it’s not, it’s merely illegal to spend money there, or to do so in pursuit of travel. The U.S. Supreme Court has affirmed the constitutional right of unrestricted travel; thus the U.S. government invokes the 1916 Trading with the Enemy Act to prohibit travelers from trading with Cuba.

To visit Cuba legally you must either spend no money there or qualify for a license issued by the U.S. Treasury Department in order to buy goods or services.To visit Cuba legally you must either spend no money there or qualify for a license issued by the U.S. Treasury Department in order to buy goods or services. Except as specifically licensed by the Office of Foreign Assets Control (OFAC), payments of any kind in connection with travel to Cuba are prohibited, including prepaid tours to companies in third countries. The regulations change frequently and are open to interpretation by OFAC staff. (At press time, the Obama administration had liberalized restrictions for Cuban-Americans, and more liberal interpretation of the laws is evident; more licenses are being granted, and the Bush administration witchhunt of transgressors appears to have been relaxed.)

The regulations apply to: U.S. citizens and permanent residents wherever they are located; all people and organizations physically in the United States (including airline passengers in transit); and all branches and subsidiaries of U.S. companies and organizations throughout the world.

To determine if you or your organization qualifies for a general license (which does not require prior authorization) or a specific license (which does require prior authorization), contact the Licensing Division, Office of Foreign Assets Control (U.S. Department of the Treasury, 1500 Pennsylvania Ave. NW, Washington, DC 20200, tel. 202/622-2480).

All licensed U.S. travelers to Cuba must have a visa from the Cuban government prior to reserving their flight.

General Licenses for Travel to Cuba

The following categories of travelers are permitted to spend money for Cuban travel without the need to obtain special permission from OFAC, and they are not required to inform OFAC in advance of their visit to Cuba.

Official government travelers, including representatives of international organizations of which the United States is a member, traveling on official business.

Journalists and supporting broadcasting or technical personnel regularly employed in that capacity by a news reporting organization and traveling for journalistic activities. (The Cuban government requires that you be issued a journalist’s visa, not a tourist card.)

Full-time professionals whose travel is directly related to “noncommercial, academic research” in their professional field and whose research will comprise a full work schedule in Cuba and has a likelihood of public dissemination; or whose travel is directly related to attendance at professional meetings or conferences that do not promote tourism or other commercial activity involving Cuba or the production of biotechnological products, so long as such meetings are organized by “qualifying international bodies.”

Persons visiting family: People with close relatives in Cuba may visit them as often as desired and for an unlimited period.

Other: As of September 2009, individuals traveling to conduct business in the field of agricultural and medicinal product sales (including marketing, negotiation, delivery, or servicing of exports), and in telecommunications, including conferences and meetings, are required to submit written reports to OFAC 14 days prior to and subsequent to travel. Fully hosted travel, formerly allowed, is no longer permitted.

Specific Licenses for Travel to Cuba

A specific license requires written government approval. Applicants should write a letter to OFAC stating the date of the planned visit and the length of stay; the specific purpose(s) of the visit; plus the name(s), title(s), and background(s) of the traveler. Allow two or three months. Special licenses are issued by OFAC on a case-by-case basis authorizing travel transactions in connection with these travel categories:

Humanitarian travel and support for the Cuban people: Persons traveling to Cuba to accompany licensed humanitarian donations or in connection with activities of recognized human rights organizations investigating human rights violations; or travel aimed at promoting “independent activity intended to strengthen civil society in Cuba.”

Freelance journalists: Persons with a suitable record of publication who are traveling to do research for a freelance article.

Professional research and meetings: Persons engaging in professional research or attending professional meetings that do not meet the general license requirements.

Educational research: U.S. universities, colleges, and nongovernmental organizations may apply for one-year travel permits to Cuba that will permit students and academic staff to travel to Cuba. Once such a license is approved, the following categories of travelers affiliated with that academic institution are authorized to engage in travel-related transactions without seeking further approval: (1) undergraduate or graduate students participating in a structured educational program lasting at least 10 weeks in Cuba as part of a course offered at a U.S. undergraduate or graduate institution; (2) persons doing noncommercial Cuba-related academic research for the purpose of qualifying academically as a professional (e.g., research toward a graduate degree); (3) students participating in a formal course of study lasting at least 10 weeks at a Cuban academic institution, provided the Cuban study will be accepted for credit toward a degree at the licensed U.S. institution; (4) persons regularly employed as teachers at a licensed U.S. undergraduate or graduate institution who plan to teach part or all of an academic program at a Cuban academic institution for at least 10 weeks; (5) full-time employees of a licensed institution organizing or preparing for the educational activities described above. In all cases, students and teachers planning to engage in such transactions must carry a letter from the licensed institution stating the institution’s license number and that the individual meets the specific criteria.

Religious organizations: Specific licenses may be issued by OFAC to religious organizations authorizing individuals affiliated with the organization to engage in travel transactions so long as a full-time program of religious activity is pursued in Cuba. Persons wishing to engage in religious activities that are not authorized pursuant to a religious organization’s license may also apply for a specific license, including for multiple trips.

Public performances, athletic or other competitions, and exhibitions: Persons traveling to participate in such events may apply, so long as the event is open to public attendance and any profits go to a U.S.-based charity or independent nongovernmental organization in Cuba. Also, amateur or semiprofessional athletes or teams selected for a competition by the relevant U.S. sports federation may travel to participate in athletic competition held under the auspices of an international sports federation, so long as the event is open to the Cuban public.

Private foundations or research or educational institutions: Persons traveling to Cuba on behalf of private foundations, research institutes, or educational institutes that have an established interest in international relations to collect information related to Cuba for noncommercial purposes. Export, import, or transmission of informational materials: Persons traveling to engage in exportation, importation, or transmission of informational materials.

What You May Spend, Take, and Return Home With

Licensed travelers, including for family visits, are authorized to spend up to the State Department Travel per diem allowance, which was US$179 in Havana and US$126 for the rest of Cuba at press time. Journalists may spend more than this allowance (the amount is unspecified), and other licensed travelers may spend additional money “for transactions directly related to the activities for which they received a license.” Money may be spent only for purchases of items directly related to licensed travel, such as hotel accommodations, meals, and goods personally used by the traveler in Cuba. Credit cards, including those issued by foreign firms, may not be used.

Accompanied baggage is limited to 44 pounds.

Regardless of the reason for travel, licensed travelers are not permitted to return to the United States with any Cuban purchases, other than informational material, which may be brought back without limitation (this includes art, CDs, films, etc.). The regulations apply even to foreigners in transit through U.S. airports: Since the U.S. has no transit entry, all passengers in transit, say, from Mexico to Europe, must pass through U.S. Immigration and Customs; any Cuban items may be confiscated, whether bought in Cuba or not.

Qualified Travel Service Providers

U.S. law states, “U.S. travel service providers, such as travel agents and tour operators, who handle travel arrangements to, from, or within Cuba must hold special authorizations from the U.S. Treasury Department to engage in such activities.” OFAC licenses companies as authorized Travel Service Providers (TSPs), who are legally entitled to make commercial travel arrangements to Cuba. TSPs can only make reservations for individual travel for licensed travelers. You must obtain approval before proceeding with a reservation. (OFAC may issue TSP licenses to certain companies and organizations permitting them to offer pre-packaged group tours, so long as such programs fall within the areas for licensed travel.)

However, referring to non-TSP travel agencies and tour operators, “It is possible to provide travel services to U.S. persons legally able to travel to Cuba for family visits, professional research, or news gathering,” says Michael Krinsky, a partner in the law firm of Rabinowitz, Boudin, Standard, Krinsky and Lieberman (740 Broadway, New York, NY 10003, tel. 212/254-1111, fax 212/674-4614), which represents the Cuban government in the United States. They may also be able to provide services, such as travel arrangements to Jamaica, from where a traveler makes his or her own arrangements for travel to and within Cuba. Treasury Department regulations do not “show a clear penalty against travel agents who book travel this way.” Travel agents should double-check the regulations, however, with OFAC or with Krinsky.

“Illegal” Travel

Individuals who choose to circumvent U.S. law do so at their own risk and the author and publisher accept no responsibility for any consequences that may result from such travel.

Every year, thousands (20,100 in 2007, according to Cuba, down from 84,500 in 2003) of U.S. citizens slip into Cuba through Canada, Mexico, and other third countries to savor the frisson of the forbidden. Cubans play their part by abstaining from stamping passports (however, many travelers report receiving a small stamp, such as a purple square, on page 16 of their passports, familiar to U.S. authorities). Persons subject to U.S. jurisdiction who travel to Cuba without a license bear a “presumption of guilt” and may be required to show documentation that all expenses incurred were paid by a third party not subject to U.S. law.

Very few people ever have trouble coming back. Nonetheless, if Uncle Sam decides to go after perceived offenders, the latter will first receive a questionnaire and, if OFAC believes the law has been broken, a “prepenalty notice” listing the amount of the proposed fine. (Trading with Cuba illegally is good for up to a US$55,000 fine under provisions of the Helms-Burton Bill, plus up to US$250,000 under the Trading with the Enemy Act, but most demands for fines have been US$7,500.) If issued a penalty notice, you have 30 days to appeal. If the case is not settled out of court, it ostensibly goes before an administrative law judge, who can uphold or dismiss the penalty, but no judges are in place to adjudicate! Thus, anyone receiving a pre-penalty notice can effectively kill the action dead by requesting a hearing. (Only two people have ever been prosecuted: In January 2005 a judge slapped the first-ever such fine—for US$5,250—on a Michigan couple who had traveled in 2001 on a religious mission; the second penalty was for US$780.) If you choose to pay the fine requested in the pre-penalty notice, as many people do, you can negotiate the amount.

How to Defend the Right to Travel

The National Lawyers Guild (132 Nassau St., Suite 922, New York, NY 10038, tel. 212/679-5100) has a Cuba subcommittee that can aid in defending against enforcement actions. The Center for Constitutional Rights (666 Broadway, New York, NY 10012, tel. 212/614-6464) is the primary institutional clearinghouse for legal information about the Cuba travel regulations and represents those who have been accused of violating the ban.

Excerpted from the Fifth Edition of Moon Cuba.

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