Abady Law Firm, P.C. – Customs and Import/Export Attorney Blog

Learn the Basics of Customs and International Trade Policy and Procedure

Archive for the "U.S. Customs Lawyer" Category

Exporting New and Used Vehicles from the United States to an Overseas Buyer

The question of whether one is permitted to export a vehicle from the United States to a foreign buyer (in China, Dubai, etc) is a tricky one.  Over the last few years there have been cases of federal officials seizing vehicles and cash associated with the business of exporting vehicles. News articles and government press releases of such scenarios have been reported on:

Two California Men Plead Guilty In “Far-Reaching And Elaborate” Automobile Export Scam (April 29, 2013)

U.S. Targets Buyers of China-Bound Luxury Cars (February 11, 2014)

Man accused of identity theft, fraud in car scheme arrested (March 18, 2015)

Selling vehicles for export angers automakers, but is it illegal? (July 21, 2014)

Exporting luxury cars is lucrative, legally questionable (August 6, 2014)

U.S. authorities are cracking down on oversea auto exporters (October 2, 2014)

Investigators pursue luxury car exporters (January 17, 2015)

Inside Stories From the War Between Automakers And Dealers Over Exports (February 12, 2016).

In United States v. Content of Wells Fargo Bank, et al,  the court ordered the federal government to return money and vehicles it seized from an automotive export business that sold luxury vehicles to the overseas market.  The government argued that there were federal wire fraud laws violated by using foreign money to defraud American car dealers into selling them vehicles that were intended to stay in the United States. Specifically, luxury vehicle dealers are prohibited by their manufacturers from selling cars for export.  Dealers have the purchaser sign a contractual agreement stating that the cars are not to be exported. In order the facilitate the purchase of luxury vehicles the automotive export company used “straw buyers” to purchase said vehicles (if the same purchaser walked into the same dealership multiple times to purchase luxury vehicles the dealership may get suspicious and prohibit the sale) and thereafter shipped them overseas.  The court held that the government could not establish probable cause to believe that the funds seized are the “proceeds” of wire or mail fraud.  The court reasoned that the misrepresentation was only a civil matter (not criminal) because the party deceived by a material misrepresentation (dealer) is NOT the same party injured (manufacturer). Therefore, the court ordered the immediate release of seized funds and vehicles.

While this decision may protect one from criminal liability there is still the question of civil liability.  In an article written by Automotive News entitled Dealer scores in suit against illegal exporters over 100 vehicles were purchased and exported overseas without the dealer’s knowledge.  As a result, the dealer violated its franchise agreement (which prohibited the sale of vehicles for export) and was liable to reimburse the manufacturer for incentive money it did not qualify for. Thereafter, the dealer filed suit against the purchasers and a jury found in favor of the dealer under claims of fraud, breach of contract, and intentional misrepresentation or concealment and violation of the RICO act.

Based on these cases, one must be careful in conducting an auto export business.

In addition, U.S. Customs and Border Protection (“Customs”) provides a list of regulations on its website regarding the export of vehicles here. One important point is the definition of “used” vehicles for purposes of filings in the Automated Export System (“AES”). For example, you go into a dealership and purchase a vehicle.  You drive it off the lot, is it now considered a “used” vehicle? Further, the distinction between a “new” versus “used” and “titled” versus “untitled” vehicle correlates to the type of documentation needed to be provided to Customs.

With respect to the definition of “used”:

  • Used. “Used” refers to any self-propelled vehicle the equitable or legal title to which has been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser.
  • Ultimate Purchaser. “Ultimate Purchaser” means the first person, other than a dealer purchasing in his capacity as a dealer, who in good faith purchases a self-propelled vehicle for purposes other than resale.

A mistake in the designation of a vehicle as “new” versus “used” in the AES can result in the seizure of said vehicles. Thus, it is vital that one carefully reviews the Customs regulations prior to export.

Resource Information

For more information about this blog post, please contact Abady Law Firm, P.C. and speak with our customs lawyer at (800) 549-5099. Also visit www.customsesq.com to chat with a customs lawyer — who has insight into Exporting Vehicles — about your company’s export situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

Hoverboards On Fire This Holiday Season – Literally

 

Burned hoverboard. Photo: CPSC hoverboard fire

This past holiday season hoverboards have been one of the most popular items this past holiday season.  As a result, we have received numerous phone calls regarding U.S. Customs and Border Protection (“CBP” or “Customs”) intense examinations of these products.  The reason being is that there have been cases where these hoverboards burst into flames due to counterfeit batteries being used to power them. See here http://nypost.com/2015/12/30/hoverboard-bursts-into-flames-inside-a-brooklyn-apartment/. This led to intervention by the Consumer Product Safety Commission (“CPSC”), the federal agency regulating the safety of consumer products nationwide.

Customs and CPSC work closely to ensure the safety of products that are imported in the U.S. Customs is the “enforcer at the border” and enforces not only their own regulations but the regulations of all third party federal agencies.  Here, importers must ensure the quality of these hoverboards before importation. Make sure the factory you purchase from has a licensing agreement with the trademark holder of the battery inside.  If you are dealing with an agent in a foreign country make sure you get a paper trail leading to the trademark holder.  Once these goods arrive at the port of entry there is generally no turning back.  The trademark holder is unlikely to offer any assistance if the batteries are counterfeit and Customs will detain, seize, forfeit and destroy these goods.  Meaning the importer is out the money spent to their supplier for the purchase of the goods and Customs may come after the importer for penalties (if you receive a penalty contact a Customs and International Trade expert immediately).

How can this mistake be avoided?  Make sure you get a full understanding of what you are buying, the components (and packaging) comprising a product are just as important as the product as a whole. A minor mistake will cost you, and seizure will not be remitted because of ignorance.   Further, Customs will have you flagged as a potential violator and you may see an increase is examinations (and delays) at ports of entry.   Thus, if there are any trademarks on the goods, seek documentation supporting their legitimacy.  If you need help with identifying issues or verifying documentation contact an attorney experienced in Customs and International Trade law.

Resource Information

For more information about this blog post, please contact Abady Law Firm, P.C. and speak with our customs attorney at (800) 549-5099. Also visit www.customsesq.com to chat with a customs and international trade attorney —  about your company’s import/export situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

U.S. Customs and Border Protection Export Issues and Enforcement

We are seeing many Automated Export System (“AES”) violations as of late, especially with FedEx, DHL, and UPS shipments. As a result, please find information below regarding the export regulations and enforcement by U.S. Customs and Border Protection (“CBP”). 

What is the Automated Export System?

CBP published the Trade Act regulations in the Federal Register on December 5, 2003. The rule requires advance transmission of electronic cargo information to CBP for both arriving and departing cargo. In the Federal Register notice, CBP identified the AES  as the system for transmission of advance electronic export data for all modes of transportation.

On June 2, 2008, the U.S. Census Bureau published amendments to Title 15, Code of Federal Regulations, Part 30, Foreign Trade Regulations, mandating the filing of export information by the U.S. Principal Party in Interest (“USPPI”) or its authorized agent through the AES or AESDirect for all shipments where a Shipper’s Export Declaration (“SED”) was previously required.  SED information filed to AES became known as Electronic Export Information (“EEI”).

When do you need to prepare the EEI formerly SED to be filed with CBP?

  • Shipment of merchandise under the same Schedule B commodity number is valued at more than US$2,500 and is sent from the same exporter to the same recipient on the same day. (Note: Shipments to Canada from the U.S. are exempt from this requirement.)
  • The shipment contains merchandise, regardless of value, that requires an export license or permit.
  • The merchandise is subject to the International Traffic in Arms Regulations, regardless of value.
  • The shipment, regardless of value, is being sent to Cuba, Iran, North Korea, Sudan or Syria.
  • The shipment contains rough diamonds, regardless of value (HTS 7102.10, 7102.21 and 7102.31)

What happens if you fail to file the EEI or file the EEI late?

The absence or late filing of the Electronic Export Information in the Automated Export System (AES) or late filing of AES commodity data subjects the shipment to seizure.

If my goods get seized by U.S. Customs for an AES violation what do I do?

Read the following blog post for details about the U.S. Customs seizure process here and contact a professional experienced in such matters.

Additionally, look for the following language in your Notice of Seizure and Information to Claimants Non-CAFRA Form that would indicate an alleged AES violation:

Screen Shot 2015-03-18 at 7.15.28 PM

Resource Information

For more information about this blog post, please contact Abady Law Firm, P.C. and speak with our customs lawyer at (800) 549-5099. Also visit www.customsesq.com to chat with a customs lawyer — who has insight into the Notice of Seizure — about your company’s export situation and to schedule a consultation.  To chat with us, click the bottom right corner tab of our homepage.

 

Kratom Imports and FDA Import Alert 54-15

Lately it has come to our attention that kratom (MITRAGYNA SPECIOSA) is being targeted more frequently in the past couple of months.  Specifically, U.S. Customs and Border Protection (“Customs” or “CBP”) and the U.S. Food and Drug Administration (“FDA”) have been examining and detaining kratom shipments from overseas.  Additionally, express consignment operators such as FedEx, UPS, and DHL, are cautious to ship the product because of the potential problems associated with this botanical.

These delays can be attributed to FDA’s import alert 54-15.  The alert provides for:

DETENTION WITHOUT PHYSICAL EXAMINATION OF DIETARY SUPPLEMENTS AND BULK DIETARY INGREDIENTS THAT ARE OR CONTAIN MITRAGYNA SPECIOSA OR KRATOM

The language of the import alert focuses on “DIETARY SUPPLEMENTS AND BULK DIETARY INGREDIENTS.”   These types of goods implies an end use for human consumption purposes.  By classifying the product plainly and vaguely as kratom (MITRAGYNA SPECIOSA) on Customs and shipping documents, you are leaving the examining officers at ports of entry across the U.S. with the ultimate decision as to admissibility.   We have also seen declarations such as: incense, soap scrubs, and clothing dye.  Accordingly, the intended use of kratom when imported provides an important factor in determining the kratom’s admissibility. Thus, one must articulate to the federal agencies the use of the kratom properly so as to argue that it falls outside the scope of the import alert.

Please be aware that the FDA has brought action against company’s they find are selling for human consumption:

See here:

U.S. Marshals seize botanical substance kratom from southern California facility

and here:

United States of America v. 577 Cartons et al

We currently represent numerous kratom importers to establish a plan and dialogue with the federal agencies who regulate kratom so as to avoid unnecessary delays and improve clearance of their shipments.  As a result, we have been successful in getting kratom released from detention/seizure by Customs/FDA.  Contact us immediately if your shipment is being detained by the federal agencies.

For more information about an importing kratom or for assistance with any of the issues noted above, contact Abady Law Firm, P.C., at 800.549.5099, to speak with a international trade attorney today!

Remanufactured or Refurbished Cell Phone Importing – What Should You Know?

There is a big market for used cell phones around the world.  Accordingly, we come into contact with many entrepreneurs who are involved in the secondary cell phone market.  As a result, we have handled many cases involving refurbished or remanufactured cell phones.

Your typical fact pattern involves a U.S. company that would export broken cell phones to a refurbishing center in a foreign country. Depending on the nature of repair, the cell phones would undergo a thorough repairing process before they are considered to be back in good working order.  Subsequently, the cell phones are shipped back to the United States.

Prior to delivery to the importer, these now remanufactured or refurbished cell phones must clear through customs.  U.S. Customs and Border Protection (“CBP” or “Customs”) is the responsible federal agency for determining the admissibility of such products. When it comes to investigation and delays for remanufactured or refurbished cell phones we have seen that questions involving intellectual property rights are most notably at issue.  Specifically, Section 526(e) of the Tariff Act of 1930, as amended, provides that merchandise bearing a counterfeit mark within the meaning of Section 1127 of Title 15, that is imported in violation of Section 1124 of Title 15, shall be seized and, absent the consent of the trademark owner, forfeited for violations of the Customs laws. 19 U.S.C. Section 1526(e).

The first prong of section 526(e) requires that the imported merchandise bear a counterfeit mark as defined by section 45 of the Act of July 5, 1946 (the “Lanham Act,” codified as amended at 15 U.S.C. Section 1127.  Section 45 of the Lanham Act defines the term counterfeit as “a spurious mark that is identical with or substantially indistinguishable from, a registered mark.” 15 U.S.C. Section 1127.

The second prong requires that the merchandise, in addition to bearing a counterfeit mark, shall have been imported in violation of section 42 of the Lanham Act, which provides:

Except as provided in subsection 1526 (d) of Title 19 . . . no article of imported merchandise . . . which shall copy or simulate a trademark registered in accordance with the provisions of this chapter . . .  shall be admitted to entry at any customhouse of the United States . . . .

15 U.S.C. Section 1124.  A “copying or simulating” trademark or trade name is one which may so resemble a recorded mark or name as to be likely to cause the public to associate the copying or simulating mark or name with the recorded mark or name. 19 C.F.R. Section 133.22(a).

Questions arise as to whether there is a violation of a trademark when one is selling remanufactured or refurbished goods under the original manufacturer’s U.S. trademark.  As a general matter, it is not a violation to sell such goods without deceiving consumers provided that one attempts so far as possible to restore the original condition of the goods and full disclosure is made about the true nature of the goods i.e. that they are remanufactured or refurbished goods.  Nitro Leisure Products, L.L.C. v. Achushnet Co., 341 F.3d 1356, 1361 (Fed. Cir. 2003).  Accordingly, there is information one can provide to CBP to prove that your goods do not violate any trademark laws.  This depends on the nature of remanufacturing or refurbishing done to the product, how it was imported, and the documents one has regarding their purchase.

If you find yourself in a position where your remanufactured or refurbished goods are detained or seized by CBP contact an attorney who is familiar with Customs and International Trade laws and regulations as well as the secondary cell phone market business.

For more information about an importing remanufactured or refurbished cell phone products or for assistance with any of the issues noted above, contact Abady Law Firm, P.C., at 800.549.5099, to speak with a international trade attorney today!

Smoke Shop Importing Into the U.S. – What Should You Know?

U.S. Customs and Border Protection (CBP or Customs) is the federal agency in charge of determining the admissibility of items sold in smoke shops across the country.  Presently, we have been asked by importers across the United States for information regarding how to determine whether ones product will meet scrutiny by CBP.  Moreover, whether Customs would permit entry of these products into the United States.

For such products like water pipes, grinders, blunt wraps/wrappers, and vaporizers CBP will consider whether the specific product you are attempting to import constitutes “drug paraphernalia.”

The relevant statute, 21 U.S.C. Section 863 provides,

(a) In general It is unlawful for any person—

(1) to sell or offer for sale drug paraphernalia;

(2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or

(3) to import or export drug paraphernalia.

Pursuant to 21 U.S.C. Section 863(d), the term “drug paraphernalia” is defined as:

[A]ny equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body, such as—

(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(2) water pipes;

(3) carburetion tubes and devices;

(4) smoking and carburetion masks;

(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;

(6) miniature spoons with level capacities of one-tenth cubic centimeter or less;

(7) chamber pipes;

(8) carburetor pipes;

(9) electric pipes;

(10) air-driven pipes;

(11) chillums;

(12) bongs;

(13) ice pipes or chillers;

(14) wired cigarette papers; or

(15) cocaine freebase kits. (Emphasis added).

How do you determine whether an item is considered drug paraphernalia?

21 U.S.C. Section 863(e) provides that:

[I]n addition to all other logically relevant factors, the following may be considered:

(1) instructions, oral or written, provided with the item concerning its use;

(2) descriptive materials accompanying the item which explain or depict its use;

(3) national and local advertising concerning its use;

(4) the manner in which the item is displayed for sale;

(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;

(7) the existence and scope of legitimate uses of the item in the community; and

(8) expert testimony concerning its use.

Lastly, 21 U.S.C. Section 863(f) lists exemptions:

(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or

(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory. (Emphasis added).

The U.S. Supreme Court examined the meaning of “drug paraphernalia” pursuant to 21 U.S.C. Section 863 in the matter of Posters ‘N’ Things v. United States, 511 U.S. 513 (1994), and considered the phrases (1) “primarily intended for use” and (2) “designed for use” in such case.

The Court concluded that “primarily intended for use” is to be understood objectively and refers generally to an item’s likely use. Posters ‘N’ Things, 511 U.S. 513, 521 (1994). Moreover, the Court noted that this “is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features.” Id. at 521 n.11.

The court stated that “items ‘primarily intended’ for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia.” Id. at 521 n.11. Therefore, items having possible multiple uses may constitute drug paraphernalia for purposes of 21 U.S.C. Section 863 if the likely use by customers of the seller of the items is for use with illegal drugs.

Customs will make the determination on a case-by-case basis about whether your product falls within the context of drug paraphernalia.  Accordingly, one should take into account the relevant factors that CBP considers when publishing its rulings on such products.  Further, one should speak with an attorney who focuses on Customs law to ensure that the best arguments are presented to CBP for clearance of their smoke shop products into the United States.

For more information about an importing smoke shop and vape products or for assistance with any of the issues noted above, contact Abady Law Firm, P.C., at 800.549.5099, to speak with a customs law attorney.

Frequently Getting Selected by Customs and Border Protection for Additional Screening at U.S. Ports or Borders? Here’s What You Can Do…

If you find yourself consistently being detained for secondary screenings at U.S. entry ports when returning from international destinations, you should probably contact the Department of Homeland Security’s Travel Redress Inquiry Program (“DHS TRIP”).

The above statement also applies to travelers who:

  • Often face problems at ports of entry
  • Were delayed or denied entrance on an airplane
  • Were denied or delayed when trying to enter or exit U.S. ports of entry or border checkpoints.
  • Feel that they have been improperly or unfairly: denied, delayed, or required to undergo additional screening at national transportation hubs.

The reasons for these additional screenings can be anything from being confused with someone else, or past convictions. Fortunately, for those who fall into any of the above categories, there are steps you can take to ease your entry and exit through these ports.

Step 1: Figuring out why you are repeatedly selected for additional screening

If you do not understand why Customs and Border Protection (CBP) keeps singling you out for additional screening, you should to find out why. That task is not particularly difficult since the Freedom of Information Act (FOIA) allows you to request copies of all information CBP has on you. The information on DHS databases go as far back as 1982, so by submitting a FOIA request on CBP.org, you should be able to pinpoint why you are being targeted at entry ports.

Step 2: Correcting erroneous information on your DHS files

Once you figure out why you are often made to undergo additional screening by CBP, you can file an inquiry through DHS TRIP to have incorrect information corrected. It’s a straightforward process that only requires a computer and internet access.

Simply head to the online form, and fill out the required information.

If you found erroneous information in the copies you received from your FOIA request, you should address that in the appropriate part of the form. Make sure you include details and any other information that can help clear things up.

You’ll also be required to send in copies of some documents with your inquiry like your passport. Copies of these can be sent via snail mail or scanned and sent to TRIP@dhs.gov.

Once your inquiry is accepted, you will be sent a Redress Control Number. This allows you to check up on the status of your inquiry and for booking flights once your inquiry has been resolved.

So, if you find yourself getting consistently singled out at U.S. entry ports and would like to avoid more of the same in the future, the above steps should point you in the right direction. However, you should note that resolving issues on your DHS files does not automatically exempt you from additional screening in the future. The selection process for determining which travelers are singled out depends on many other factors like random selection and travel patterns.

Generally speaking though, a positive outcome from your DHS TRIP inquiry should make it a lot easier for you to enter and exit U.S. ports.  One should seek the advice from an attorney to increase the probability of success through the DHS TRIP. 

For more information on this customs issue or to request a consultation with Abady Law Firm’s customs attorney, visit  www.customsesq.com or call (800) 549-5099

Don’t forget to LIKE US on Facebook and share* this blog post link with your own network. No one else should have to go through such an alarming experience during their international travel. 

* Share this Blog with Your Own Facebook Network by Clicking the Share Button at the Top of This Post or By Clicking Share on the Actual Facebook Post that Includes This Blog Post Link.

Understanding the Charges That Come with a CBP Inspection Conducted at a Centralized Examination Station

If you have recently had a container inspected by Customs and Border Protection (CBP), you are probably wondering why you are being charged by the Centralized Examination Station (CES) conducting the inspection.

While those charges might seem strange at first, it’s all part of the regular examination process.

Every day, thousands of shipments make their way through U.S. ports of entry, and it is the CBP’s responsibility to ensure that these shipments do not contain contraband or otherwise illegal items.

In order to protect our borders CBP has the right to inspect any shipment that enters the United States, and it is the importer’s responsibility to bear the costs of all cargo exams performed by the CES. It’s all under 19 USC 1467. That law applies to household products as well since there is no distinction between personal and commercial shipments when it comes to port inspections.

The CBP has the right to examine any shipment that comes through U.S. ports, period.

The law also states that the owner of the shipment is responsible for any costs associated with the examination in 19 CFR 151.6: The Government shall be reimbursed for the compensation, computed in accordance with § 24.17(d) of this chapter, and other expenses of the Customs officer or employee supervising the action permitted.

CBP does not charge for inspections, but other costs can arise when shipments are sent to a CES for further examination. The charges for the inspection are not actually coming from CBP, it’s the CES – which is a privately owned entity – that charges for the costs associated with examinations.

Once an inspection is ordered by the CBP, the shipment is moved to a CES facility. There, the cargo will be unloaded, examined, reloaded, and then transported back to its original location. The bill that is sent to you is for the costs associated with all these tasks, plus storage fees in some cases.

The exact amount you end up getting charged varies depending on a host of factors like location, size of your shipments, and the distance to the nearest CES facility. The charges can be as high as a few hundred dollars in some cases, or less than a hundred in others.

While these charges might be inconvenient for some, using CES facilities for inspections allows for more timely and efficient inspections for all.

For more information on the charges that come with a  CBP inspection as well as any other customs law issue, please contact Abady Law Firm (www.customsesq.com) at 800-549-5099

Land Rover Defender Destroyed By U.S. Customs – How Can This Be Prevented?

I have represented many importers looking to import vehicles from around the world into the United States.  For those doing so, one must ensure that the vehicle is in compliance with the laws and regulations of the Department of Transportation. Otherwise, entry into the United States will be prevented by U.S. Customs and Border Protection. If a violation is found, the importer will face the possibility of a seizure and severe penalties for failing to comply.  If you find yourself in such a situation best to contact an attorney experienced in handling such matters to minimize such consequences and achieve the best possible solution under the circumstances.

You do not want to find your vehicle victim to the following:  http://autos.yahoo.com/video/u-customs-crush-land-rover-144127210.html

Import/Export Attorney: OFAC, Cuba, and Baseball

The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under US jurisdiction. Many of the sanctions are based on United Nations and other international mandates, are multilateral in scope, and involve close cooperation with allied governments.

Baseball and Cuba are synonymous.  Cuba has been known to develop top talent in Major League Baseball.  Such names include Rafael Palmeiro, Jose Canseco, Minnie Miñoso, and Camilo Pascual. However, given the lack of diplomatic relations between the United States and Cuba it has been difficult for Cuban nationals to represent their homeland.  When a player decides to defect from Cuba, he has made his choice between the two countries.   Today, top Cuban Major League players include Yoenis Céspedes, Aroldis Chapman, and Leonys Martin.   In order to sign with a major league team these Cuban baseball players had to first present either an unblocking license from the U.S. Office of Foreign Assets Control (OFAC) or two permanent residency documents from another country. See 31 C.F.R. 515.505 below:

(a) General license unblocking certain persons. The following persons are licensed as unblocked nationals, as that term is defined in § 515.307 of this part:

(1) Any individual who:

(i) Has taken up residence in the United States;
(ii) Is a United States citizen, a permanent resident alien of the United States, or has applied to become a permanent resident alien of the United States and has an adjustment of status application pending; and
(iii) Is not a specially designated national; and

(2) Any entity that otherwise would be a national of Cuba solely because of the interest therein of an individual licensed in paragraph (a)(1) of this section as an unblocked national.

(b) Specific licenses unblocking certain individuals who have taken up permanent residence outside of Cuba. Individual nationals of Cuba who have taken up permanent residence outside of Cuba may apply to the Office of Foreign Assets Control to be specifically licensed as unblocked nationals. Applications for specific licenses under this paragraph should include copies of at least two documents indicating permanent residence issued by the government authorities of the new country of permanent residence, such as a passport, voter registration card, permanent resident alien card, or national identity card. In cases where two of such documents are not available, other information will be considered, such as evidence that the individual has been resident for the past two years without interruption in a single country outside of Cuba or evidence that the individual does not intend to, or would not be welcome to, return to Cuba.

For more information regarding OFAC as it relates to baseball contact us at 347-512-9007.