One of the most prominent issues that has emerged from the US’ broad sanctions on Iran is US (and other) banks’ increasing reluctance to deal with anything having a connection to Iran.  Why?  For one, the US Department of Treasury has avidly gone about discouraging foreign banks from dealing with Iran. Further, several years back, it removed the previous exception for “U-Turn” transactions, whereby certain Iranian transactions could be processes through US banks. To this day, certain transfers (even somewhat direct) are permitted between the two states but they have become nearly impossible.

What is message here? Presumably fearful of having something illicit fall through the cracks and facing hefty OFAC penalties the way certain major international institutions have in recent years, banks have increasingly turned their backs towards even permitted transactions.  BHFA Law Group regularly sees cases where Iranian origin from third countries are rejected by US banks or even situations where U.S. banks close down depositors’ accounts.

Although each case is different, the pattern seems to be that banks are increasingly weary of average individuals engaging in what may appear as awkward behavior.  Having faced the wrath of sanctions for the past 30+ years, many Iranian-Americans in large part have in large part become “immune” to strange activities that others in their community go through to receive funds or even the nature of these transactions.  For example, many of us know that Iranian-origin funds generally need to arrive in the US from a third country.  However, few seem to notice that to the eyes of the outside world, the idea of average people with average incomes receiving large funds from banks in Kuwait or Dubai is not, well, an average issue. Further, inheritance and family monetary gifts, as I have often stated, tend to be large in the Iranian-American community.  This is in part related to cultural matters, but also events in Iran, such as high inflation (including real estate), and the increasing concentration of wealth. Therefore, many Iranian-Americans who receive funds in the US, be it their own money or gifts, may be receiving money in much larger quantities or from arguably more unusual sources than other individuals.  This may give their US banks pause, causing them to send the money back, close accounts, and in some cases, even freeze funds. Imagine if you worked in a bank compliance department and suddenly saw a customer with a $70,000 income receiving a $2 million inheritance or a $500,000 gift that came in through a wire from Turkey?  Happens in our community all the time, but could be quite strange to others.

What’s the take home message here? On top of ensuring that your transaction is legal, you should also take proactive steps.  Educate your bank as to who you are and what you do.  If you have an OFAC license, share it with your bank. File transfer affidavits with appropriate language before your money comes in.  The minute a wire is rejected, the US bank has to notify OFAC, and that can lead to an Administrative Subpoena being sent to you – a hefty request that can take a lot of your time, and if you hire a lawyer, a fair bit of money. If a bank has certain assurances that the transaction is authorized and legitimate, then it will very likely be less averse towards it.

Remember, the staff members at your bank branch likely want to help you, but they generally have limited authority. Playing golf with your branch manager every day will not guarantee that your funds arrive or that your account won’t be closed.  More broadly, banks have to deal with numerous compliance issues, from anti-money laundering to various OFAC regulations and sanctions that have nothing to do with Iran. They do not spend all their time on Iran and it’s not common for a bank compliance officer to know all the ins and outs of US sanctions on Iran  Therefore it is exceptionally helpful to have the necessary conversations and provide the necessary paperwork (referencing applicable laws and regulations, providing correct narratives, etc.) to your bank to demystify legitimate transactions that unfortunately often seem to bear illegitimate appearances. It goes without saying I’ve had a number of very productive calls with bank personnel who seem relieved and happy when I tell them I’m going to be sending them documents (such as letters and/or affidavits) regarding the clients’ upcoming transactions.   Do yourself and your bank a favor – make sure you are doing everything in a compliant way and make sure your bank knows that you are!

I’ve often joked that many people in the U.S., particularly within the Iranian-American community, engage in business with Iran with a lack of knowledge about the sanctions and in a matter as if they are dealing with a non-sanctioned country like Switzerland or Japan.  Some of this is understandable – U.S. sanctions with Iran are very complicated and there are many laws one could never assume exist based on simple common sense.  For example, who would have thought that a U.S. citizen or Permanent Resident generally cannot sell his or her own property in Iran without a license from the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), or that he or she cannot even work in most jobs in Iran without an OFAC license?.   Today’s posting is about doing business with Iran and what you should know.

Most Business By U.S. Persons with Iran is Prohibited

Before we get into what is permitted and prohibited, let’s first determine whether you meet the definition of a “U.S. person.”  The Iranian Transactions Regulations, 31 CFR Part 560 (2011) (the “ITR”) define “U.S. Person” as any individual with U.S. citizenship or permanent residency wherever they are (including Iran) and U.S. companies around the world. It also includes individuals physically in the United States (such as people here on work and student visas, or even tourist visas!) and companies formed under U.S. law.  It is irrelevant if you also hold an Iranian passport, a Canadian passport, a French passport, or any other nationality. If you meet the above criteria, you are a U.S. person, and this status does not magically disappear when you set foot on Iranian soil.

What types of activities are U.S. Persons prohibited from engaging in with Iran?  Most business by U.S. persons with Iran is prohibited, including dealings with non-U.S. goods.  But let’s first start with what is allowed.

What type of business can be done by U.S. persons in Iran?

As a U.S. person, you generally can:

1. Engage in certain dealings in informational materials, such as exporting books, movies, music and art from the U.S. to Iran, and importing such products from Iran to the U.S.;
2. Export certain limited types of free communications software;
3. Export most types of food products to Iran;
4. Obtain a specific license from OFAC to export or deal in medical supplies, medical equipment, and pharmaceuticals for use in Iran;
5. Obtain a specific license from OFAC to rent out property you may have owned from before you came to the U.S. (as an example);
6. Engage in certain travel related business with Iran (such as sell plane tickets to Iran);
7. Provide certain legal services to people in Iran;
8. Register U.S. intellectual property such as patents and trademarks  in Iran (or Iranian IP here in the United States); and
9. Apply for a license for most other transactions – although OFAC will review and accept on a case-by-case basis (note OFAC is not bound by precedent and is generally not fond of most activities that will promote U.S.-Iran trade ties)

A fairly narrow window of activities I would say!

What can you not do with Iran?

As a U.S. person, unless you have a specific license from OFAC, you cannot, among other things:

1. Sell most goods to Iran from the U.S. or from any third country jurisdiction, like Germany or Dubai;
2. Facilitate trade with Iran, such as arrange for a shipment of Chinese goods from China to Iran, provide credit to enable such a transaction, work for a Korean company on most deals related to Iran, or work in a Dubai company on reexport transactions with Iran;
3. Invest in Iran, such as building an apartment building, opening a factory, running a factory, etc. (bear in mind one Iranian American was fined $30,000 in late 2010 for a “non-egregious” investment in a family catering business);
4. Run a business in Iran such as a bookstore, or an engineering firm;
5. Work in Iran or for Iranian companies, whether you are sitting in your house in the United States and working remotely for a company in Iran, or whether you move to Iran and work for a company there, or even work for an Iranian company in London, Istanbul, or Dubai;
6. Deposit and maintain money in banks in Iran, even in non-sanctioned private banks; or
7. Import most goods from Iran, even through a third country like Australia or India;
8. Set up a company overseas to deal with Iran.

One can effectively sum up U.S. policy on this issue as follows: outside the spread of informational materials which promote the free flow of ideas between the countries and the sale of humanitarian goods such as most foods, medicines and medical supplies, the United States generally does not want U.S. persons to do business with Iran.  As such, once you become a U.S. person you effectively have to sever business ties with Iran.

It may be very fashionable or convenient to live in the United States but live on money you make in Iran, but realize this can lead to exceptional civil and criminal liabilities under U.S. law.  Note that you can apply for a specific license from Iran to sell your commercial interests in Iran (be it a company you owned, shares of stock, rental property, or inherited interests in a business venture, etc.).

Despite the many economic problems in Iran, the reality is that Iran is a very rich country with high liquidity and plenty of business opportunities.  However, the more significant reality, arguably, is that Iran is under comprehensive U.S., and increasingly European Union (EU) sanctions.   Given the hostilities between the United States and Iran, it should be expected that commercial relations are very limited.

There’s a reason you don’t see direct flights, banking relations, Starbucks Coffee, the Gap, McDonald’s, Wells Fargo, Accenture, General Motors dealerships, or Crate & Barrel etc. in Iran (further, it’s not so odd that you do see many non-U.S. chains like Benetton, Mango, and Carrefour, which are not limited by U.S. sanctions).  Be sure that it has already occurred to most U.S. giants that Iran could be profitable.  Many people have already wanted (and already have, when relations were better) thought of exporting Caterpillar bulldozers and Levi’s jeans to Iran.  (I should note some of these types of goods are in Iran legally, but there is an exceptionally complex story behind that).  The sanctions are not just a government-to-government matter, and having dual citizenship does not give you special rights.

What if You Have Committed a Violation?

It is critical that one evaluate any history of violations, and if you are a business in the U.S. doing international work, you should seriously consider implementing a compliance program. I have seen certain U.S. businesses that have a heavy risk factor with respect to Iran – employees shuttling back and forth (or even moonlighting on projects in Iran!), or in one case a business where the owner also owned ongoing businesses in Iran. I even heard of one case where a gentleman in the U.S. was monitoring his factory in Iran via webcam! These are all exceptionally prohibited activities and one should take an abundance of caution.

The ITR and related regulations tend to be incredibly nuanced.  Therefore, when in doubt always seek the advice of an expert.  Business activities with sanctioned countries (not just Iran but others such as Cuba and Syria) is not a place for guesswork.

An often-repeated statement you hear in the Iranian-American community is that depositing money in Iranian banks is a great investment.  Interest rates in some Iranian banks have hovered in the double digits for years, at one point even exceeding 20%.  Word has it that some Iranian banks offer Dollar or Euro-denominated accounts.  Deposit your money in Dollars, receive high interest in Dollars – sounds particularly enticing when you see how low our interest rates here in the United States are.  Anybody with half a brain would withdraw some of his or her savings in the U.S. and deposit in one of these private banks in Iran, right? Wrong.

A U.S. person taking money from the U.S. (or anywhere else) and
depositing it in any Iranian bank unless authorize authorized is violating U.S. sanctions against Iran.

Aside from selling and dealing in property in Iran without specific authorization from the Office of Foreign Assets Control (OFAC) (which I addressed at length in this article months ago), one of the most common violations of the U.S. sanctions regime committed by Iranian-Americans is  deposits in these high-interest accounts in Iran.

The common logic goes as follows: “I am a U.S. citizen or Green Card holder, but I am an Iranian national.  As any other citizen in most if not all other countries, I can put money in a bank in my own country.”  Yes, it does theoretically make, but it not true.  As I have discussed in previous postings, if you meet the definition of a “United States person” under the Iranian Transactions Regulations (the “ITR”) you are bound by OFAC’s sanctions regulations on Iran.  If you are a U.S. citizen or permanent resident (regardless of where you live) or if you are physically present in the U.S. (such as students or those here on work visas) you are a U.S. person.  It does not matter if you also have an Iranian passport, a Canadian passport or a Japanese passport.

As a U.S. person, you cannot make any new investment in Iran without proper authorization.  A U.S. person taking money from the U.S. (or anywhere else) and depositing it in any Iranian bank unless authorize authorized is violating U.S. sanctions against Iran.  That is new investment and prohibited unless permitted otherwise.  Not only that, but you are effectively “importing” a service (by the Iranian bank to you) from Iran, which is also generally prohibited.  If the money is invested in a bank labeled by OFAC as a Specially Designated National (SDN) you have another problem – U.S. persons are generally prohibited from conducting even permitted Iranian transactions with SDN banks (such as Saderat, Melli, Mellat, Sepah).

You may have any one of the following questions, which I have answered below:

1. Can I deposit money in a private Iranian bank that is not government-owned?

No. Unless otherwise permitted, such deposits, irrespective of the bank, are prohibited.  Even if you have a license, unless you meet some type of narrow exception you still will not be able to utilize the services or generally deal with Bank Saderat, Bank Melli, Bank Mellat, Bank Sepah and any other bank designated as an SDN.

2. I actually deposited some money years a few years ago in an Iranian bank as the interest was high. What should I do now?

Violations of the ITR can reach up to the maximum of $250,000 or twice the value of the violation, whichever is greater.  Not every violation is obviously fined this much as various factors can come into play. However, violations of the ITR have at times met with steep penalties.  You can also submit a voluntary self-disclosure (a written disclosure) to OFAC what the violation was, etc.  If your disclosure meets that definition, that can reduce the maximum penalty by 50%.

3. I have an account from long before I became a U.S. person sitting in an SDN Bank such as Saderat. What should I do?

Maintaining such accounts is a violation of OFAC regulations as you are dealing with an SDN.  As such, you can apply for a specific license from OFAC to close that account out.

4. I am going to be selling some property I own in Iran.  I don’t have a bank account there right now, but really can’t carry all the sale proceeds in cash with me to the United States. What should I do?

Naturally, if you are a U.S. person dealing with property in Iran (be it selling it, buying it or renting it out) you need a specific license from OFAC authorizing all such activities you intend to engage in.  In this process, you can also request opening an account in a non-sanctioned Iranian bank to store the money until you transmit it to the United States.  This may be accepted, it may not.  Regardless, you should obviously make sure you are authorized to do any and all things you intend do in this regard (or with Iran).

The reality is that Iran holds immense investment and other economic potential.  It is a relatively rich country and a somewhat untapped economy.  Be sure that you and your friends and relatives are not the only one who has discovered this!   Many U.S. and other companies are waiting for the sanctions to come down so they can do business (and make money) in Iran.  The fact that U.S. companies are really not investing or dealing with Iran (unless you count a very narrow band of permitted activities) should serve as a red flag to you.  It goes without saying that irrespective of your personal beliefs, you should naturally comply with all applicable laws.

Please contact Farhad R. Alavi at +1 (202) 686-4859 or falavi@bhfalaw.com should you have any questions.

© 2011, BHFA Law Group, PLLC

This article and its content are solely intended for informational purposes and should not be interpreted as constituting legal advice.  You should consult with legal counsel with regard to all topics and issues discussed herein.

Farhad Alavi delivered a talk titled How U.S. Sanctions Laws on Iran Can Affect You and Your Business at an event sponsored by the Los Angeles chapter of the Iranian American Bar Association (IABA).  The event was held in Century City, California, and was well attended, including a presentation on the basic principles of the application of U.S. sanctions laws on individuals and businesses. Topics covered included general corporate compliance, property/inheritance liquidation and money transfers.

Slides for this event will be forthcoming.