U.S. RESTRICTIONS ON PROFESSIONAL RESEARCH
AND EDUCATIONAL ACTIVITIES IN CUBA

Memo from Attorney Michael Krinsky, Esq.
RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C.
ATTORNEYS AT LAW
740 BROADWAY AT ASTOR PLACE, FIFTH FLOOR
NEW YORK, NY  10003-9518
TELEPHONE (212) 254-1111
FACSIMILE (212) 674-4614
MICHAEL KRINSKY
EMAIL:
mkrinsky@rbskl.com

                                                                                                        
January 28. 2005

FROM: MICHAEL KRINSKY, ATTORNEY

MEMORANDUM ON U.S. RESTRICTIONS ON PROFESSIONAL RESEARCH
AND EDUCATIONAL ACTIVITIES IN CUBA.

In this memorandum, we provide an explanation of current U.S. restrictions on professional research and educational activities in Cuba. On June 16, 2004, the Treasury Department's Office of Foreign Assets Control ("OFAC") issued relevant amendments to the Cuban Assets Control Regulations ("CACR"), and, on September 30, 2004, issued "Comprehensive Guidelines" that also are relevant. OFAC issues and administers the CACR.

The United States prohibits US citizens and permanent residents from traveling to Cuba unless their travel is authorized by the CACR, or by specific licenses issued by OFAC.

In certain circumstances, discussed below, the CACR, or OFAC by specific license, authorizes travel for purposes of professional research, attendance at professional meetings or conferences, graduate student research, and undergraduate or graduate study.

I. Professional Research

General License for Professional Research

As was the case prior to the June 16, 2004 amendments, full-time professionals may travel to Cuba to carry out a full work schedule of professional research in their professional areas, provided that the research has a substantial likelihood of public dissemination.

The requirement of "public dissemination" can be satisfied in a variety of ways, including, without limitation, the publication of articles, the delivery of lectures or the inclusion of the research in classroom instruction.

The research must be of a "non-commercial, academic nature." However, this does not exclude, for example, publication of a book, or delivery of a lecture, for a fee.

Travel by qualifying persons for professional research is authorized by a provision of the CACR, called a "general license," that sets out the requirements for this type of travel. In other words, there is no need for the concerned person to obtain any document from the U. S. government authorizing the trip. If a person meets the criteria set out in the "general license", then he or she can travel for professional research purposes without any government documentation.

However, any individual traveling pursuant to this general license should be prepared to justify the trip if queried by U.S. Customs or by OFAC. It is recommended that the individual travel with a copy of his or her curriculum vitae. If possible, it may also be helpful to bring an advance work plan outlining a full work schedule of professional research, even if the schedule is tentative.

Specific Licenses for Professional Research

When the "general license" is inapplicable, a professional may be able to obtain authorization for professional research by applying to OFAC for a specific license.

For example, a person may not be a "full-time" professional in a field because he or she is retired. For this reason, the individual would not qualify for the general license for professional research. However, it is possible that OFAC may grant a specific license to this individual on application.

Specific licenses are usually granted only for professional research "specific to Cuba" that "cannot take place elsewhere." In this regard, it is unlike the general license for professional research, which is not limited to Cuba-specific research.

Authorization for multiple trips may be requested by persons "demonstrating a significant record of research."

An application is made to OFAC in letter form. The specifics required for the application are set out in an OFAC publication, "Comprehensive Guidelines for License Applications To Engage in Travel-Related Transactions Involving Cuba." It is available on the OFAC website at http://www.ustreas.gov/offices/enforcement/ofac/programs/cuba/cuba.pdf [url updated April 29, 2006.]

Interested individuals must make sure to consult the most recent revision of the "Comprehensive Guidelines," which, as of date, is September 30, 2004. It is important to follow these guidelines carefully, as OFAC has become prone to reject applications for technical defects.

II. Attendance at Professional Meetings or Conferences

"International" conferences and meetings

Attendance at professional meetings or conferences does NOT qualify as professional research.

However, full-time professionals may attend professional meetings or conferences in Cuba organized by an “international” organization, institution or association that regularly sponsors meetings or conferences in other countries. This authorization is provided by a general license in the regulations; the professional need not make an application to OFAC for a specific license.

To come within this general license, it is NOT sufficient that an international body endorses the conference or meeting. Rather, it must organize the event. This does not exclude the possibility of a Cuban entity working with the international body to help organize the event, or even being listed as a co-organizer.

To qualify as the organizer of a conference covered by this general license, the “international” body may not be headquartered in the United States. An international organization headquartered in the U.S. must obtain a specific license from OFAC in order to organize a conference in Cuba.

OFAC takes the position that the general license would apply to conferences organized by the third-country offices of organizations such as the United Nations or PAHO, even if those organizations are headquartered in the United States. The general license would not apply to conferences organized by the United States offices of those same organizations.

It is OFAC’s position that the general license does not apply to conferences organized by institutions headquartered in Cuba, even if they are “international,” rather than Cuban. OFAC’s assumption is that such organizations do not regularly sponsor conferences in different countries and so do not meet the requirements of the general license for that reason. OFAC takes the same position for conferences organized by the Cuban offices of international organizations headquartered outside of Cuba, on a similar assumption. OFAC’s assumptions may be unfounded in some circumstances; in those instances, the matter might be usefully raised with OFAC.

Companies that are in the business of running conferences also do not qualify, since they are not “professional.”

Full-time professionals may attend international conferences or meetings satisfying the above criteria without obtaining any documentation from the U.S. government.

Other conferences and meetings

Except for conferences organized by qualifying international bodies, professionals must obtain a specific license from OFAC to attend a conference or meeting related to his or her field and expertise.

The application for a specific license must explain why attendance is "necessary" and must explain "whether a similar conference elsewhere is not readily available." However, the subject matter of the conference need not be specific to Cuba.

An application may be made to OFAC in letter form. The specifics required for the application are set out in OFAC's "Comprehensive Guidelines."

A full-time professional pursuing a full work schedule of research pursuant to the general license for professional research may attend sessions of a professional meeting or conference, provided that attendance is not inconsistent with his or her full-work schedule of professional research outside of the meeting or conference.

III. Research for Graduate Degrees

Through two different mechanisms, graduate students may conduct research in Cuba, provided that the research will be accepted for credit toward their graduate degrees. By “graduate” students, the CACR means persons who have already obtained a college or university degree, and are now pursuing a more advanced degree.

First, an accredited university may obtain a specific license from OFAC for its students to carry out authorized educational activities in Cuba. Among the authorized activities is research by graduate students that will be accepted for credit toward their graduate degree at the licensed university. Graduate students enrolled at the licensed university may travel under the auspices of the university's license by obtaining a letter from the university stating that the student is enrolled as a graduate student and that the research will be accepted for credit toward his or her graduate degree.

Second, graduate students at U.S. universities that do not have a specific license from OFAC for educational activities may themselves apply for specific licenses to conduct research in Cuba. These students will have to furnish a letter from their university stating that the research will be accepted for credit toward his or her graduate degree.

Graduate research must "specifically relate to Cuba." Graduate "research" is different than participating in a course of instruction.

The CACR does not specify a minimum, or maximum, period of time for graduate research in Cuba. However, the student must pursue a full work schedule in Cuba.

For further details on the application process, consult OFAC's Comprehensive Guidelines.

Prior to the June 16, 2004 amendments, research by persons working to qualify academically as a "professional" was authorized by specific license. This included, but was not limited to, obtaining graduate degrees. The June 16, 2004 amendments limited this category simply to persons working toward a graduate degree. This excludes persons who have no undergraduate degree, but are working toward obtaining a professional degree in nursing or engineering, for example.

IV. Academic Study in Cuba

Under the June 16, 2004 amendments, OFAC will continue to grant specific licenses to accredited U.S. colleges and universities authorizing certain educational activities. However, the amendments altered the features of those educational activities in important respects.

Under the June 16 amendments, OFAC will grant specific licenses to colleges and universities for one year's duration only, in contrast to the two-year duration of pre-June 16, 2004 licenses.

Colleges and universities issued specific licenses prior to June 16, 2004 may continue to use those licenses until their expiration date, but the licenses can be used only for activities consistent with the June 16 amendments.

Courses offered by the licensed US. college or university

The specific licenses issued to accredited U.S. colleges and universities authorize "participation in a structured educational program in Cuba" that is part of a "course offered at the licensed U.S. college and university."

To participate, a student must be enrolled in an undergraduate or graduate degree program at the licensed college or university that is offering the course. In a change from the pre-June 16, 2004 regulations, students at other colleges or universities cannot participate even if their schools will accept participation for credit.

The program of study in Cuba must be no shorter than a "full term" of at least ten weeks' duration. The prior regulations had no duration requirement.

Employees of the licensed university or college who are both "full-time" and "permanent" are authorized to travel to Cuba to organize and participate in the program.

The licensed college or university simply must furnish a letter to the student for the student to travel to Cuba. There is no need for the student to make an application to OFAC, or for the college or university to give notice to OFAC that the student will be traveling under the auspices of the college or university.

For the details of what the institution's letter must state, see OFAC's Comprehensive Guidelines.

Formal course of study at a Cuban academic institution

Through two different mechanisms, college or university students may participate in "a formal course of study at a Cuban academic institution."

First, students enrolled at a U.S. college or university with a license to conduct educational activities may participate in "a formal course of study at a Cuban academic institution," provided that they will receive credit for that study at that college or university.

The student must be enrolled in an undergraduate or graduate degree program at the licensed U.S. college or university.

In a change from previous regulations, the course of study at the Cuban academic institution must be no shorter than 10 weeks in duration.

The licensed U.S. college or university simply must furnish a letter to the student for the student to travel to Cuba. There is no need for the student to make any application to OFAC, or for the college or university to give notice to OFAC that the student will be traveling under the auspices of the college or university.

For the details of what the U.S. institution's letter must state, see OFAC's Comprehensive Guidelines.

Second, students enrolled in U.S. colleges and universities without OFAC licenses to conduct educational activities may apply to OFAC for a license to participate in "a formal course of study at a Cuban academic institution."

The specific license will be granted only if the student's participation will be accepted for credit toward his or her undergraduate or graduate degree at the U.S. college or university where the student is enrolled.

The student must be enrolled in an undergraduate or graduate degree program at the college or university.

In a change from previous regulations, the course of study at the Cuban academic institution must be no shorter than 10 weeks in duration.

Employees of the licensed university or college who are both "full-time" and "permanent" are authorized to travel to Cuba to organize and participate in the program.

V. Teaching at a Cuban Academic Institution

The faculty of accredited U.S. colleges or universities with licenses to conduct educational activities may teach at a Cuban academic institution, provided that the teaching activities are related to a Cuban academic program.

The faculty member must be a full-time and permanent employee of the U.S. college or university, and must be regularly employed in a teaching capacity at that college or university.

The faculty member's teaching in Cuba must be no shorter than 10 weeks in duration.

VI. Note on Research by Faculty

Faculty may conduct professional research, or attend professional meetings and conferences, in Cuba only if they meet the requirements set out in sections I and II above. The fact that their colleges or universities have specific licenses for educational activities is irrelevant.

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