On April 17, 2019 in Miami during the 58th anniversary of the ill-fated Bay of Pigs invasion, National Security Advisor John Bolton announced significant White House policy changes with regards to Cuba. Earlier in the day, Secretary of State Mike Pompeo announced that the waiver for Title III of the Helms-Burton Act would be allowed to lapse, making way for Cuban-born US citizens to sue companies using their former property appropriated by the Cuban government after the Revolution. Bolton followed that up by announcing a few hours later that US citizens would only be allowed to travel to Cuba in order to visit family members. More details on how this policy will play out have been provided, so below I’m outlining what I know, and what I think the impact might be for future travel to Cuba by US citizens.
Are US citizens allowed to visit Cuba right now?
As of June 5, under rules established by the Department of the Treasury’s Office of Foreign Assets Control (OFAC), US citizens can only visit Cuba under one of 11 approved categories: The 11 categories of authorized travel to Cuba are: family visits; official business of the U.S. government, foreign governments, and certain intergovernmental organizations; journalistic activity; professional research and professional meetings; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations or research or educational institutes; exportation, importation, or transmission of information or informational materials; and certain authorized export transactions. The people-to-people category, which was the most commonly used, was eliminated on June 5. Legally, US citizens cannot visit Cuba as simple tourists.
[I recently visited Havana on a cruise with Norwegian Cruise Lines through a group people-to-people visa; unfortunately, neither is currently an option. However, CLICK HERE to read my guide for wheelchair users who would like to visit Havana through a different visa category.]
Why are US citizens restricted from visiting Cuba?
The United States has a difficult history with Cuba, which is a communist country. The US maintains an embargo (basically, strict economic sanctions) against Cuba as a way of punishing the country for things like human rights violations and lack of basic freedoms, as well as a way to motivate Cuba to move towards a free market economy. The US government restricts travel to Cuba as a way of keeping US tourist dollars from going towards the Cuban government.
Why were US citizens allowed to start visiting Cuba in 2015?
Former President Barack Obama felt that decades of American policy towards Cuba had been ineffective, so he sought ways to normalize diplomatic relations between our two countries. In a move that was regarded as highly controversial, Obama reestablished diplomatic ties with the Cuban government and opened up somewhat limited travel to US citizens after decades of severe restrictions.
How is it legal to visit Cuba?
In 1996, Congress passed the Helms-Burton Act, which basically codified the embargo and all of the policies that had been in effect for decades regarding restrictions on trade and travel with Cuba. However, the Act itself was controversial, and many members of Congress didn’t agree with certain sections of it. The most problematic section was Title III, which allows US citizens born in Cuba to sue entities using property in Cuba formerly owned by private citizens, then appropriated by the Cuban government after the Revolution. Subsequent presidents and members of Congress have recognized that Title III is problematic for diplomacy and international trade, so they included a provision that would allow the president to waive Title III every six months. This waiver is what allows US citizens to travel to Cuba, as well as US companies to do business with Cuba in certain circumstances — like cruise lines and airlines.
What is changing now?
The last waiver of Title III was made by President Trump in February 2019, but instead of a six month waiver, he only waived the section for 45 days. During this time, he said he would discuss with the Department of Justice what to do about the Helms-Burton Act, and if they wanted to shift policy. In collaboration with the Department of Justice, President Trump decided he would allow the 45 day waiver to lapse on May 2, which means that for the first time since the Helms-Burton Act went into effect, Title III will be fully enforced.
Most recently, on June 5, 2019. the US government removed the people-to-people category from the approved OFAC category list for reasons to visit Cuba.
Why was the policy changed?
For several reasons. First, Trump has been wanting to go harder on Cuba since his election, and has been eager to roll back most, if not all, changes that former President Obama made to loosen restrictions. Trump is also anxious to appease the Cuban exile community, which forms part of his base of supporters. Finally, Venezuela is currently in the midst of a severe political, economic, and humanitarian, crisis. Since Cuba and Venezuela have an extremely close economic and political relationship, Trump feels this is a good way to punish Cuba for assisting Venezuela.
What does the new Cuba policy entail?
The enforcement of Title III is rather specific with the rights it grants to Cuban-born US citizens. A little while ago, the US government started enforcing some aspects of Title III, which allows lawsuits against companies who are using property in Cuba that used to be owned by Cuban citizens. After the Revolution, the Cuban government appropriated and nationalized almost all private property, including land and buildings. In the decades since, several companies have started using those properties and buildings to run their business in Cuba, including major hotel chains owned by companies in Europe and Canada. The new policy would allow these US citizens to sue those Canadian and European — and in some cases American — companies using property and buildings that used to belong to them before the Revolution.
Are these lawsuits expected to be successful?
Absolutely not. Not many acknowledge the substance of these lawsuits, and neither the Cuban government or any of these companies are expected to provide any sort of compensation to the plaintiffs. Somewhat tongue in cheek, the Cuban government says it’s happy to provide compensation once the United States government repays the Cuban government hundreds of billions of dollars in damages as a result of the embargo. However, thousands of lawsuits are still expected to be filed, which could cause quite the clog in the international and US court system. Canadian and European companies are also considerably incensed at the impact this will have on their business and international trade agreements.
What else has changed with regards to Cuba policy?
Cruise ships departing from US ports or owned by American companies are no longer allowed to stop in Cuba. The White House has also stated that US citizens will only be allowed to travel to Cuba in order to visit family members living on the island, or as part of the other 10 approved OFAC categories. It has also restricted remittances to the island to $1000 per person once a quarter. The U.S. Treasury Department also will suspend Obama-era authorizations that allowed Cuban companies and banks to perform “U-turn” transactions in third countries that passed indirectly through the U.S. banking system.
When did these changes take effect?
The full implementation of all sections of the Helms-Burton Act went into effect on May 2. The elimination of the people-to-people visa category went into effect on June 5.
For the record, legislation is not required for this new travel policy to take effect. Former President Obama lifted travel restrictions with an executive action called a Presidential Policy Directive, and President Trump will impose new restrictions the same way. The Treasury Department and its Office of Foreign Assets Control will be responsible for rewriting its rules and enforcing them. The last action Trump took to strengthen restrictions against Cuba was a National Security Policy Memorandum in June 2017. Although the memorandum indicated that relevant agencies should begin enforcing those changes within 30 days of the memorandum’s publication, the true effective date was in November 2017.
How are US cruise lines and airlines affected by these changes?
Leading up to the easing of travel restrictions between the United States and Cuba, US airlines and cruise lines were legally allowed by the Treasury Department to negotiate with the Cuban government. This was a long, complicated, and difficult process, much of which was facilitated by the Title III waiver. Obama approved US cruises to Cuba in 2015. Florida-based Carnival Cruise Line announced during Obama’s historic trip to Cuba in March 2016 that it would begin cruises to Cuba starting May 1. Until recently, there were roughly a dozen major cruise lines that visit Cuba (including Carnival, NCL, Royal Caribbean, and Holland America) and several smaller expedition-style tour operators. In 2018, the Department of Transportation awarded Cuba flights to American Airlines, Delta, JetBlue, Southwest, and United.
As of June 5, 2019, cruise ships departing from US ports or owned by American companies are no longer allowed to visit Cuba. Cruise ships that had already sailed when the announcement was made immediately modified their itineraries. Future cruises that had included Cuban ports are either being modified or canceled.
Cruise lines have the more severe potential to be affected by the Helms-Burton portion of the policy change for the most unusual reason. Cruise ships stop in several different Cuban ports of call, but the most popular one is Havana. The portion of the Port of Havana where cruise ship dock was owned by a Cuban citizen prior to the Revolution. The legal heir is a US citizen who lives in England, and the United States government knows him as certified foreign claim number CU-2492. According to the US Department of Justice’s Foreign Claims Settlement Commission, Behn is the rightful owner of Havana Harbor, which was taken from Behn’s family when the socialist government nationalized property without compensation. If (or when) Title III is fully enforced, cruise lines using Havana Harbor can be held liable under US law.
This being said, Pedro Freyre, chairman of international practice at Akerman LLP, a major Miami law firm, told the Washington Post that although the State Department said there would be “no exemptions” for lawsuits against Cuba investments, the law contains a cutout for technology and travel-related business that would appear to exempt US airlines and cruise ships traveling to Cuba. However, the more immediate impact would be economic, as only US citizens with relatives still in Cuba could legally fly there. Demand for flights and cruises from the US to Cuba could significantly drop, resulting in fewer flights and revised sailings to avoid economic losses.
What are cruise lines saying?
Over the last 24 hours, cruise lines who have been scheduled to visit Cuba have been issuing policy statements for their passengers and for travel agents. All of them have unequivocally stated that they will no longer be stopping in Cuba. Each cruise line has a different policy with regards to cancellation, rebooking, itinerary modifications, and any other compensation packages to include refunds and/or onboard credits. Please contact your cruise line directly, if you haven’t heard from them, or if you booked with a travel agent, contact him or her to let them know you want to be notified immediately with regards to the status of your cruise.
I have a flight/cruise booked to visit Cuba. Should I worry?
As of right now, If you have flight reservations and hotel accommodations booked to Cuba prior to June 5, your reservations will be grandfathered in and you will still be allowed to fly to Cuba. If you have a cruise reservation, regardless of when it was booked, you should have either heard directly from your cruise line or from your travel agent by now with regards to the status of your reservation. Either your itinerary will have changed, or your reservation will be eligible for rebooking or cancellation, and at least a partial refund. If you are using a travel agent, which I always highly recommend, I would get in touch with him or her to make sure they are following this issue — which I’m sure they probably are. I
f you are not using a travel agent, most likely you will receive an email from your airline or your cruise line with information about how this policy change may or may not affect your future travel plans. If you have questions or concerns about potential cancellations or how you might be compensated, check with your airline, cruise line, or travel insurance policy.
Is there any way I can still visit Cuba?
Yes. If you legally meet the requirements for any of the other 11 OFAC approved categories, then you can still legally visit Cuba. However, you will have to fly there, as taking a cruise to Cuba is no longer a legal option for US citizens. Most likely, the more popular remaining approved category will be “support for the Cuban people.” There are significant differences in the requirements between the group people-to-people visa category and the support for the Cuban people category. Read here to find out what you need to do in order to visit Cuba under this visa category. The most important thing to remember is that you will only be able to visit Cuba by standard commercial air, and that you will be required to stay in a privately owned Airbnb-style casa particular, rather than a hotel.
How long will this policy be in place?
Given that this is a political decision, that is anyone’s guess. It may be once President Trump is no longer in office if his successor decides to reverse it, or Trump himself might amend the policy due to economic or political pressures placed upon him down the road. We would also be remiss in eliminating the Cuban government from this decision-making process. Even if this policy aims to be reversed down the road, the Cuban government may choose to not allow US airlines to land in Cuba or US cruise ships to dock at Cuban ports. As I mentioned before, US–Cuba relations have historically been difficult and complicated, as well as unpredictable.
This blog post will be updated as more detailed information becomes available from the US government and the travel industry.