Business Travel to USA – Taking Form FINCEN 105 Very Seriously

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Business Travel to USA – Taking Form FINCEN 105 Very Seriously

 

Saturday, March 24, 2012 7:18 AM / By Olumide K. Obayemi*
 
I.          Introduction
 
The first time that I arrived in the United States , although, I had less than $5,000 on my person, when I was handed "Report of International Transportation of Currency or Monetary Instruments" form FinCEN 105, I did not read it carefully, I just signed the form and handed it back to a pretty blond lady with blue eyes. Remembering those blue eyes, I would have signed anything at that moment. Yet, Form FinCEN 105 is a legal document that has landed several persons in legal quagmire and made them lose thousands of dollars while incurring substantial legal fees for counsel representation.
 
United States law states that if a person tries to leave or enter the country with $10,000 or more in cash, he is obligated to declare it. The penalty for not doing so is a jail sentence of up to five (5) years, a $250,000 fine, and government confiscation of the money that he tried to smuggle out.
 
Thus, the U.S. Customs officer usually gives most people—not everybody entering or leaving, but most people—a little card to fill out so they can state how much cash they're carrying over a U.S. border. These forms are signed under penalty of perjury, irrespective of whether the CBP officer handing it over to you is blond, brunette or redhead, subjecting the traveler to full weight of the law.
 
Failure to report may, in the extreme, lead to imprisonment and/or deportation.
 
II.        THE LAW UNDER 31 U.S.C. 5316; 31 CFR 1010.340 and 1010.306
 
The law as stated under 31 U.S.C. 5316; 31 CFR 1010.340 and 1010.306, is that when entering the U.S. in-transit to a foreign destination, you will be required to clear U.S. Customs Border Protection (CBP) and Immigration and Customs Enforcement. If you have "negotiable monetary instruments" (i.e. currency, personal checks (endorsed), travelers checks, gold coins, securities or stocks in bearer form) valued at $10,000 or more in your possession a "Report of International Transportation of Currency or Monetary Instruments" form FinCEN 105 must be submitted to a CBP Officer upon your entry into the United States .

Monetary instruments that are made payable to a named person but are not endorsed or which bear restrictive endorsements are not subject to reporting requirements, nor are credit cards with credit lines of over $10,000. Gold bullion is not a monetary instrument for purposes of this requirement. The requirement to report monetary instruments on a FinCEN 105 does not apply to imports of gold bullion.

Failure to declare monetary instruments in amounts of or over $10,000 can result in its seizure.
 
III.       ROSA AND FRANCISCO’S CASE AS A CASE-STUDY
 
In her work, entitled: Traveler’s Legal Obligation to Declare Currency is Simply a Reporting Requirement, of February 3, 2012, Lourdes Santos Tancinco recited a peculiar case involving a newly-arriving couple from the Philippines thus:
 
Abigail, a U.S. citizen, petitioned her parents, Rosa and Francisco, for an immigrant visa. Both of them are now in their senior years, Rosa is 67 years old while Francisco is 75 years old.
 
When the couple received their immigrant visas, they were excited to travel and live the rest of their lives in the United States . They withdrew money from their bank account in the amount of $25,000 to bring with them during their trip. Last year, they traveled to the United States and entered through the Los Angeles International Airport . In their customs declaration Form 4790 they failed to write that they were in possession of more than $10,000. Upon being questioned extensively by the Customs and Border Protection (CBP) inspector, Rosa initially denied carrying $25,000. At that moment, their luggage and hand carry bags were searched and the $25,000 was found. The CBP inspector forfeited all their money. Rosa was crying and insisted the return of their money, as she was not aware of the need to declare the money. Francisco was likewise upset and was arguing with the CBP inspector. He asserted the importance of having the money returned to them as they will start a new life in the United States with her daughter.
 
A few weeks after the incident, Abigail communicated with the CBP and sought to have the money returned to her parents. She argued that her parents were not aware of the requirement, had difficulty communicating in the English language and asked for compassion considering that the money were her parents’ life savings. Abigail filled up a Petition for the return of the money after her parents received their seizure notice letter. After going through the process, Abigail was able to get most of the money back with minimal penalty paid to the government. No criminal charges were filed.
 
While this couple were able to escape without criminal charges, a Nigerian might not be so lucky as he may be charged with bulk cash smuggling under 31 U.S. Code Section 5332.
 
Bulk cash smuggling is a deportable offence, and the person may be removed/deported back to Nigeria .
 
IV.       SOLUTIONS
 
First, if a Nigerian has more than $10,000 on his person while traveling—he must take Form  FinCEN 105 very seriously and declare the whole funds to the authorities. Of course, there would be multi questioning about the origin of the funds. Being a Nigerian, that would create a great hurdle.
 
Assuming the funds are legitimately obtained, the traveler should consider wiring the funds through western union and/or other reputable banks in Nigerian with correspondence banks here in the United States .
 
Form FinCEN 105 is a small form—but its effects can rise to costs of  up to $20,000 in legal fees and defense of criminal prosecutions.
 
*Olumide K. Obayemi, an attorney is from Ijebu-Jesa, Osun State Nigeria ,
 


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