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  December 3rd, 2015 | Written by

Is Cuba Really Open for Business?

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  • Despite announcements of sanctions relief, most transactions with Cuba remain prohibited.
  • It is unlikely that transactions with Cuba will be approved by the Treasury and Commerce departments.
  • U.S. persons must operate within a newly expanded—but still limited—scope of activities in Cuba.
  • U.S. persons operating in Cuba must ensure compliance with the U.S. restrictions and Cuban regulations.
  • Any U.S. travel to Cuba must fall within one of 12 authorized categories of activities.

Cuba is open for business! At least, that may be the impression that you get after listening to recent media reports, including those detailing visits by U.S. government officials.

In reality, despite the recent announcement of sanctions relief, most transactions with Cuba remain prohibited. So, while U.S. companies may apply for licenses for transactions involving Cuba, it remains unlikely they will be approved by the U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) and the Commerce Department’s Bureau of Industry and Security (BIS).

That does not mean that the door remains closed to all potential business opportunities, it simply means U.S. persons must instead operate within the newly expanded—but still quite limited—scope of authorized travel and business transactions. The challenges to taking advantage of these changes are ensuring compliance, not only with the U.S. restrictions that remain in place, but also in navigating the regulatory landscape within Cuba.

The primary areas that have seen relaxed restrictions are telecommunications, banking and remittances, and travel. OFAC has issued general licenses that allow for increased internet and other telecommunications services to link Cuba to third countries, including the U.S. Internet-based services such as email, other messaging platforms, social networking, and web-hosting are also now authorized. Companies providing these authorized services may also establish a physical presence in Cuba, including sending U.S. employees to live and work in Cuba, and hiring local employees.

Banking transactions with Cuba have long been prohibited, but the recent changes allow U.S. persons to open and maintain bank accounts in Cuba for specific purposes, including authorized travel. The revised rules also permit unrestricted dollar amounts be sent to authorized Cuban persons. A new general license authorizes remittances from Cuba, or certain Cuban nationals located in third countries, to the United States.

Finally, travel is one of the most misunderstood categories of activities. A quick web search on travel companies will return countless advertisements that promise hassle-free options to enjoy the beaches and historic sites. However, tourist travel is still prohibited. Any travel must fall within one of 12 authorized categories of activities, including family visits, professional meetings, humanitarian projects and journalistic activity. Also, the description of each category must be carefully reviewed to ensure that your activity falls within the scope. Travelers should also keep in mind that although the travel may be permitted by OFAC, certain activities may require additional authorization from the Cuban government, posing a significant challenge.

While Cuba may represent a new market for U.S. business, companies should tread carefully to ensure compliance with existing restrictions. The export agencies have announced that they will continue to vigorously enforce those restrictions. We recommend approaching all Cuba-related transactions as prohibited unless authorized by a specific carve out in the regulations.

Elsa Manzanares and Michelle Schulz are co-chairs of the International Trade group at Gardere Wynne Sewell LLP.