2017 June OFAC Announced Changes

I have been traveling to Cuba for almost a decade and for the last 3 years I have been developing programs and projects in and about Cuba for organizations, groups, and individuals.  Through my consulting company Diaspora Travel & Trade, www.DiasporaTravelTrade.com, I curate unique experiences for my clients and create opportunities for my family, friends, and colleagues in Cuba.

My team and I have expertise in program and project management, commercial and business development experience, and personal and professional relationships and resources in Cuba.  We leverage this knowledge to offer Diaspora clients a well-balanced project or program that incorporates, in compliance with US laws, the various constituencies represented in Cuba: Government and Enterprise - both public and private - and Cultural and Community Organizations.  Diaspora clients receive more than branded generic program packages; we fill our programs with strategic and unique opportunities and insight.

Regarding the most recent changes to the US Embargo Against Cuba as it relates to travel to Cuba by those subject to US Jurisdiction, the bottom line is this: (1) The Embargo is still in place, therefore tourist travel is prohibited; and (2) Travel to Cuba for non-tourist activities is still licensable pursuant to a number of different OFAC categories.

On October 19, 1960, the US Government placed an embargo (prohibition) on all exports to Cuba, except for food and medicine.  Since then, the US Embargo Against Cuba, known in Cuba as el bloqueo ("the blockade”), has grown to consist of a number of Federal statutes and associated regulations that form a commercial, economic, and financial embargo against Cuba.  The Embargo is comprehensive, detailing all prohibited activity - almost all direct or indirect financial activity by any persons or entities subject to US Jurisdiction that involves the Cuban Government, Cuban property, or Cuban nationals – and any exceptions to these restrictions.  Additionally, they are written so that the Executive Branch has the discretion to broaden or narrow certain areas. 

The Embargo prohibits transactions related to and necessary for travel (purchasing flights, accommodations, food, etc.), whether paid for by the person subject to US Jurisdiction, one subject to a third party country, or for free.  Those whose travel activities qualify for a “general license” or “specific license” as they are defined by the laws relevant to their travel dates, are exempted from these particular financial prohibitions.  Over the years, various Administrations have changed the elements required to obtain and comply with general and specific license procedures.

On December 17, 2014, US President Barack Obama and Cuban President Raúl Castro announced their respective country’s intentions to reestablish diplomatic relations in an effort to begin to normalize relations between the neighboring nations.  During the remainder of his term, President Obama and his Administration continued to use the Executive Power to “loosen” the restrictive nature of the Embargo.  There were many results, one of which was that those subject to US Jurisdiction could travel to the island nation with less restrictions.  President Obama’s final changes made many feel that the Travel Embargo had been lifted because of the relatively relaxed license requirements; those subject to US Jurisdiction were permitted to travel to Cuba if the travel activities qualified under one of the 12 travel categories that were authorized by “general license” by the US Treasury Department, Office of Foreign Asset Control (“OFAC”); license activities included signing an affidavit attesting to the OFAC category, participating in a licensed program, and maintaining all financial records associated with the trip for at least 5 years.  Additionally, travelers we were able to purchase commercial flights with US airlines. 

Although there are 12 categories, we most often hear about the People-to-People License pursuant to 31 CFR §515.565(b) (“PIIP”), which requires meaningful contact with the Cuban people.  It also requires that travelers have a fixed itinerary with scheduled events.  Prior to the recent changes, both Individual and Group PIIP travel was licensable, where the difference is that Group PIIP Travel is “under the auspices of an organization that is subject to U.S. jurisdiction that sponsors such exchanges to promote people-to-people contact.” OFAC June 16, 2017 (OFAC) Frequently Asked Questions on President Trump’s Cuba Announcement.  The most recent changes as they related to PIIP Travel are very simple, Individual PIIP will again be prohibited once OFAC issues the new Regulations.  However, Group PIIP is still licensable as well as the remaining 11 other categories.  

Cuba & KED

Every once and a while my paternal grandmother would talk about her Creole heritage noting that family on her mother’s side left Cuba for Louisiana. Louisiana Creoles descend from the a mixture of native people of that region of the Americas, free and enslaved Africans and those of African descent, and Spanish and French colonial settlers. Given the constantly developing migratory patterns within the Americas, in this case between Cuba and Louisiana, there are many Creoles born in Louisiana who have ancestry from and family on the island. This connection, though personal, has assisted me in establishing relationships and contributed to my professional accomplishments in Cuba. The personal and the professional are inextricably linked, as is the Cuban way.

My professional experience in Cuba began in February 2009 as a member of the United States Delegation of the National Lawyers Guild Labor & Employment Committee. We attended the American Jurists and Association of Latin American Labor Lawyers International Conference on Labor Rights held in Havana, Cuba (“International Conference”), and the Bilateral Research Exchange Program (“Cuba Exchange”). The International Conference is a forum for open, progressive discussion and healthy debate among labor lawyers and trade unionists, all of whom represent countries in different stages of development regarding issues of labor law and workers’ rights. It is an opportunity for cross-border discussion of and insight into the strategies of worker advocates from various countries, including the US, Cuba, Argentina, Brazil, Canada, Colombia, Ecuador, Great Britain, Mexico, and Spain. The ultimate goal of the conference is to prepare and motivate the attendees to continue addressing the state’s responsibility concerning the economic, social, human, and cultural rights of working people.

When I returned in 2010 as a member of the US Delegation, I was considered a “veteran.” Since each delegation is comprised of both returning and new members, those with knowledge of the island and the conference procedures are often relied upon for their experience. As a result, that year I was asked to moderate the US Delegation Panel along side Guillermo Ferriol, President of La Sociedad Cubana de Derecho Laboral y Seguridad Social de la Unión Nacional de Juristas de Cuba (The Cuban Society of Labor Rights and Social Security of the National Union of Cuban Lawyers). When I participated in the conference in 2015 I presented a paper entitled, Welcome to Temp Town: Discussing the Unprecedented Changes in the Provision of Legal Services and the Possibilities for New Forms of Labor Organization.

The Cuba Exchange is an opportunity for the US Delegation to meet and exchange with Cuban labor lawyers, union and other community organization leaders, and workers in various industries and levels of employment responsibility. We visit enterprises (businesses) and, when possible, engage in the work: I have met with and learned from many types of employees of State-Owned Enterprises - schoolteachers, health care workers, farm workers, tobacco workers, rum factory workers, trade union officers; and I have planted yucca and rolled tobacco. In 2015 as a result of the regulatory changes to the Cuban economic and employment models, we also met with workers/owners of recently formed Non-State Owned Enterprises.

I have chosen to travel during pivotal moments in Cuba’s recent existence, allowing me to participate in celebrations and intimately observe.  In February 2009, I travelled during the celebration of the 50th anniversary of the Cuban Revolution. I witnessed first hand the importance of the Cuban Revolution to its citizens, as both an historical event and a lodestar. My third visit in 2015 was just months after Presidents Barack Obama and Raúl Castro announced their respective country’s intentions to reestablish diplomatic relations.

During my 2015 visit, I built upon the relationships and knowledge established during previous delegations: I branded myself as a corporate/enterprise attorney; leveraged opportunities to invest in my corporate/enterprise relationships with Cuba; and was ultimately recognized by the Cuban Delegates as someone with knowledge of and experience with the legal and business systems of both the US and Cuba. A friend and colleague who is a faculty member at the University of Havana asked me to return to Cuba to participate in a research project focused on the Non-Agricultural Worker Cooperatives. This business structure is a major component of the regulatory changes that are designed to shift certain industries from state-controlled enterprises to those controlled by citizens. I am in the process of securing funding sources for this opportunity.

In an effort to leverage the emerging opportunities, and my experiences and relationships, I founded Diaspora Enterprise Solutions, LLC in 2015.

As the sole corporate attorney member of the US Delegation during these years, I offered a unique, contemporary, and valued perspective and assessment of US-Cuba relations. With the training and ability to engage in face-paced corporate environments, while maintaining a balanced practice as a highly productive business transaction attorney and a relevant Social Justice Engineer, I am proud and excited to stand at the forefront of this historic epoch in US-Cuba relations.  This time brings great opportunities for both nations and their people.  My experiences with and knowledge of Cuba in the 21st Century, 50 years Post-Revolution, combined with my professional background, position me as one of the few US corporate attorneys with an academic, theoretical, personal, and hands on approach to US-Cuba relations - past, present, and future.  I am no longer an oddity, a corporate attorney interested in a socialist country; I am a commodity, a corporate attorney with access to and respect for this particular socialist country.