Cuban nationals present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government may be transported via aircraft or commercial passenger vessels from the United States to Cuba.

On May 5, 2015, the Office of Foreign Assets Control (OFAC) published a guidance document regarding travel between Cuba and the United States. Persons subject to the jurisdiction of the United States who are traveling to and from Cuba from the United States—either under a general license for the 12 categories of travel authorized under section 515.560 of the Cuban Assets Control Regulations or under special license (when not covered by the General License)—may be transported via aircraft or commercial passenger vessel between the United States and Cuba. A company providing transportation by vessel has to possess a special license to provide the commercial passenger service.

Cuban nationals applying for admission to the United States, as well as third-country nationals, holding a valid visa or other travel authorization issued by the U.S. government may be transported via aircraft or commercial passenger vessel to the United States from Cuba.

Cuban nationals present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government may be transported via aircraft or commercial passenger vessels from the United States to Cuba.

Unblocked Cuban nationals residing in the United States are persons subject to the jurisdiction of the United States and may travel as noted above. Individuals, such as a foreign national, traveling on official business of the U.S. government, a foreign government or an intergovernmental organization of which the United States is a member or in which the United States holds observer status—including an employee, contractor or grantee of such government or intergovernmental organization and any individual traveling on a diplomatic passport, such as any close relative accompanying the traveler—may be transported via aircraft or commercial passenger vessel between the United States and Cuba.

The current regulations of OFAC provide only for carrier service by aircraft. Carrier service by commercial passenger vessel requires a special license from OFAC. In addition, separated authorization from the Department of Commerce, Bureau of Industry and Security (BIS), is required for temporary sojourn in Cuba of both aircraft and vessels. Persons in the travel/transportation industry may also require additional authorizations from other U.S. government agencies.

Persons subject to U.S. jurisdiction providing travel or carrier services pursuant to a general or special license are required to maintain, for at least five years from the date of the transaction, a certification from each customer indicating the section of the Cuban sanction regulations or the specific license that authorizes the person's travel to Cuba.

Because the current OFAC regulations authorize all transactions ordinarily incident to the export to Cuba of items licensed or otherwise authorized by BIS, a person providing carrier services for authorized travelers between the United States and Cuba may transport cargo and baggage accompanying an authorized traveler, provided that the cargo and baggage is authorized by BIS. Other cargo and unaccompanied baggage may also be carried, provided the export to Cuba is licensed or otherwise authorized by BIS. It is important to note that the export from the United States to Cuba of "information and informational material" as defined in the OFAC regulations (515.533) is exempt.

The guidance document also provides information pertaining to the type of cargo a person authorized to provide carrier services via aircraft or commercial passenger vessel may transport directly from Cuba to the United States.

The following categories are identified as accompanied baggage:

• up to $400 of merchandise acquired in Cuba for personal use (of which up to $100 may be alcohol or tobacco products);
• for foreign nationals, any Cuban-origin goods other than alcohol or tobacco products, provided that such goods are not in commercial quantities and are not imported for resale, and up to $100 in alcohol and tobacco products acquired in Cuba for personal use; and
• products made by Cuban entrepreneurs as defined in the OFAC regulations and that are authorized by the Department of State.

The list of authorized items is found at: http://www.state.gov/e/eb/tfs/spi/. An importer will be required to have proof that the producer is, in fact, a Cuban entrepreneur.

For a traveler who left the United States for Cuba and who is returning, all items temporarily exported to Cuba under license or authorization may also be carried by the party providing carrier services via aircraft or commercial passenger services. Cargo that is authorized for importation by general license or special license may also be carried. The importation of Cuban-origin information and informational materials is exempt.

For Further Information

If you would like further information about this Alert, please contact Brian S. Goldstein, any member of the International Practice Group, any member of the Cuba Business Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.