1. Does Your Transaction Fall within CFIUS Jurisdiction?
The Committee on Foreign Investment in the United States reviews certain foreign investments for national security risks under Section 721 of the Defense Production Act. These federal rules apply nationwide. A transaction can fall within CFIUS jurisdiction without requiring a filing.
Control and Minority Investment Rights
Control depends on the power to determine important business matters, not majority ownership alone. Contractual and governance rights can therefore bring a transaction within CFIUS jurisdiction.
Certain noncontrolling investments also qualify when they involve a TID U.S. .usiness, meaning a business involving specified critical technologies, critical infrastructure, or sensitive personal data. Relevant rights include:
- Access to material nonpublic technical information.
- Board membership, observer rights, or nomination rights.
- Involvement in substantive decisions concerning covered technology, infrastructure, or data.
Asset Purchases and Joint Ventures
An asset acquisition may qualify if the assets constitute a U.S. .usiness. Certain joint ventures also qualify when a U.S. .usiness contributes existing operations and a foreign participant obtains relevant rights.
For asset purchase transactions, what transfers matters more than the deal’s title. Part 802 separately covers certain real estate transactions.
2. When Is a CFIUS Filing Mandatory?
Under 31 C.F.R. § 800.401, two principal mandatory filing pathways concern specified critical technology transactions and substantial foreign government interests in TID U.S. .usinesses. No universal transaction-value threshold determines the obligation.
Critical Technology and Export Authorization
This pathway generally examines whether the business produces, designs, tests, manufactures, fabricates, or develops qualifying technology. It then asks whether exporting that technology to specified foreign transaction parties or owners would require a U.S. .egulatory authorization.
An actual export need not be planned. Classification under the Export Administration Regulations or other applicable regimes can change the result. Only specified exceptions affect this analysis; an export license exception does not automatically eliminate the filing obligation.
Substantial Foreign Government Interests
The second pathway generally concerns a foreign person acquiring a substantial interest in a TID U.S. .usiness while a foreign government holds a substantial interest in that investor.
The basic voting-interest thresholds are 25% or more in the U.S. .usiness and 49% or more in the foreign investor. Indirect ownership, investment-fund provisions, and exceptions require further analysis. Falling below these figures does not exclude other CFIUS jurisdiction or filing pathways.
The Ownership Transfer Sets the Deadline
Parties generally must submit the required declaration, or a notice instead, at least 30 days before completion. Specified written CFIUS responses can permit earlier completion.
The completion date generally follows the earliest ownership transfer. Moving equity first while delaying voting or board rights does not necessarily postpone the filing deadline.
3. When Voluntary Filing May Be Worthwhile
CFIUS can review covered transactions that parties never submitted, including completed deals. Voluntary filing offers an opportunity to address national security concerns before ownership changes or operations become integrated. The decision depends on the transaction’s risks and the parties’ tolerance for uncertainty.
Submission Does Not Create Safe Harbor
CFIUS must conclude action on the transaction before parties obtain the corresponding protection against later review. Exceptions include material misstatements or omissions and certain mitigation violations.
Clearance also does not replace other regulatory approvals. A CFIUS compliance assessment should distinguish filing, clearance, and continuing obligations.
Missing a Required Filing Has Separate Consequences
Failure to submit a mandatory filing on time can carry civil penalties up to the greater of $5 million or the transaction value per violation. CFIUS assesses the circumstances rather than automatically imposing the maximum. A late filing does not erase the earlier failure.
4. Choosing between a Declaration and a Notice
Filing obligations and submission formats are separate questions. A declaration offers an abbreviated assessment, while a notice provides fuller information for review. Parties subject to mandatory filing requirements may submit a notice instead.
Compare the Two Routes
| Factor | Declaration | Notice |
|---|---|---|
| Information | Abbreviated submission | Detailed submission |
| Filing fee | No fee | May apply based on transaction value |
| Initial period | 30-day assessment | 45-day review |
| Further action | Possible notice request or unresolved outcome | Possible additional investigation |
Information
- DeclarationAbbreviated submission
- NoticeDetailed submission
Filing fee
- DeclarationNo fee
- NoticeMay apply based on transaction value
Initial period
- Declaration30-day assessment
- Notice45-day review
Further action
- DeclarationPossible notice request or unresolved outcome
- NoticePossible additional investigation
A declaration may save preparation time, but a subsequent notice request can lengthen the overall process. Complex ownership, sensitive technology, or government relationships may favor starting with a notice.
Prepare Consistent Information
Filings should address ownership chains, government interests, investor rights, technology classifications, sensitive data, and transaction documents. Parties submit through the CFIUS Case Management System with required certifications.
Incomplete or inconsistent information can delay acceptance. Parties must also report material changes during the process.
5. How Review Periods Affect Closing
Formal review periods exclude preparation and acceptance time. The mandatory submission deadline therefore differs from the time needed for clearance. Agreements can allocate cooperation and mitigation responsibilities, but cannot require CFIUS to meet a contractual closing date.
Review, Investigation, and Extension
An accepted notice enters a review of up to 45 days, followed when necessary by an investigation of up to 45 days. Extraordinary circumstances can permit one additional 15-day investigation extension. Presidential referral carries a separate 15-day decision period.
These periods are not a guaranteed total from first submission to clearance. Applicable rules also address deadlines falling on nonbusiness days.
Withdrawal and Resubmission
Withdrawal requires CFIUS approval and may carry conditions. Refiling can begin another review cycle.
For rejected or withdrawn mandatory filings, § 800.401 generally prohibits completion earlier than 30 days after resubmission unless the Staff Chairperson gives written approval.
6. FAQ about CFIUS Filing Decisions
Consultation, investor nationality, and declaration responses have different legal effects. Each requires separate analysis before the parties proceed.
CFIUS does not issue advisory opinions on jurisdiction or mandatory filing obligations. Staff feedback is nonbinding and does not replace a required submission.
No. Excepted-investor status requires specified regulatory criteria. Nationality alone is insufficient, and qualifying status does not exempt every transaction.
No. It provides no safe harbor. Although § 800.401 permits completion after the specified written response for mandatory filing purposes, CFIUS can review the transaction later.
06 Oct, 2026
