CFIUS Filing Process

Learn Key Insights About the Committee on Foreign Investment in the United States (CFIUS) Filing Process

Going through the CFIUS filing process is mandatory for foreign investments that raise national security concerns for the United States government. Various types of national security issues can trigger the CFIUS filing requirement for covered transactions. Learn what to expect when submitting a proposed transaction to CFIUS from the lawyers at Oberheiden PC.

**Attorney Nick Oberheiden**
CFIUS Team Lead

**Attorney John W. Sellers**
CFIUS Team
Former DOJ Trial Attorney

**Glenn Karabeika**
CFIUS Team Consultant
Former HSI Special Agent

Foreign investments in the United States that have national security implications are subject to approval by the Committee on Foreign Investment in the United States (CFIUS). Investments that are subject to review include those involving any “foreign person,” which includes a foreign national, foreign government, or foreign business, as well as any party over which control can be exercised by one of these foreign parties.

The United States government has a substantial interest in preventing foreign investments that pose national security threats, and the Defense Production Act (DPA), Foreign Investment Risk Review Modernization Act (FIRRMA), and CFIUS regulations establish a framework for review of “covered transactions” that raise concerns at the federal level. Foreign investors and U.S. parties pursuing covered transactions must seek CFIUS clearance, and this involves navigating the Committee’s filing process.

Preparing for the CFIUS Review Process

While seeking regulatory authorization for a foreign investment that raises concerns about potential national security risks starts with submitting a mandatory filing, transaction parties should take steps to prepare before initiating the formal filing process. Generally, this involves either:

Ensuring that the substance and structure of the transaction are likely to meet CFIUS’s requirements and qualify for safe harbor protection; or,
Re-structuring the transaction so that it falls outside of CFIUS’s statutory authority if the transaction is unlikely to receive approval following CFIUS’s initial review and subsequent investigation.

Assuming that the decision is made to move forward with seeking CFIUS’s approval, the steps involved in submitting a voluntary filing are as follows:

Preparing the Mandatory CFIUS Filing

There are two types of CFIUS filings, and each is more well-suited to certain transactions than others. To meet CFIUS’s mandatory filing requirements for proposed transactions involving foreign ownership interests and foreign control, transaction parties must submit either: (i) a short-form “Declaration”; or, (ii) a long-form “Notice” (or full “Notice”).

CFIUS Declaration

The short-form Declaration is an abbreviated filing with fewer disclosure requirements than the long-form Notice. According to CFIUS, use of the mandatory Declaration may be appropriate for transactions “that are less likely to present national security considerations,” but that are still subject to CFIUS’s review. The Declaration form is used to notify CFIUS of a covered transaction, and filing a Declaration initiates a streamlined review process.

CFIUS Notice

The long-form Notice is a written request for a more in-depth review of a pending covered transaction. As CFIUS explains, the submission of a Notice (as opposed to a Declaration) “[m]ay provide greater certainty” that the transaction in question will not be further scrutinized in the future. If CFIUS approves a transaction, this does not provide immunity from further governmental action. Undisclosed deal terms, undisclosed national security concerns, and various other issues can potentially lead to problems in the future.

Preparing for CFIUS’s Follow-Up Information Requests

After filing a voluntary Notice or Declaration for a covered investment, transaction parties must be prepared to respond appropriately to CFIUS’s follow-up requests for information. CFIUS may request various forms of documentation during its review, and transaction parties must generally be prepared to provide the documentation requested (or explain why it is unavailable or unnecessary) in order to receive approval.

Preparing for the CFIUS Investigation Period

If CFIUS determines that further inquiry is warranted in response to a Notice filing, it may initiate a 45-day investigation period (if the transaction parties filed a Declaration, it is within CFIUS’s authority to request a formal Notice followed by a subsequent investigation period). This follows the initial 45-day review period. Investigations involving business acquisitions and real estate transactions can be extremely in-depth; and, here too, thorough preparation and strategic decision-making are key.

Potential Issues During the CFIUS Process

While it is possible for the CFIUS filing process to go smoothly, it is also possible for various issues to arise. Some examples of potential issues that can delay (or derail) the process include:

Failure to file a timely Declaration or Notice (while mandatory filings must be submitted at least 30 days prior to closing, the review process can take longer)
Failure to provide required information at the time of filing (while Declarations require less information than Notices, filing generally requires disclosure of ownership charts and detailed information about the proposed transaction)
Failing to provide required information during CFIUS’s review or investigation
National security concerns that require mitigation before CFIUS will approve the parties’ transaction
National security concerns that prevent CFIUS from approving the transaction or that require CFIUS to refer the transaction to the President for a final decision

If CFIUS requests mitigation measures, securing approval will typically involve negotiating with Committee personnel to develop a mutually agreeable approach. If it becomes clear that CFIUS will not issue a “No-Action Letter” based on risks identified during the review process, it may be in the parties’ best interests to withdraw their application and restructure the deal before making a re-submission.

Legal counsel experienced in national security will be able to help structure and document transactions appropriately, and transaction parties may be encouraged to submit a draft Notice to CFIUS for feedback before submitting their formal filing. When warranted, doing so can help avoid unanticipated issues while streamlining the filing process and minimizing the costs involved.

How CFIUS Counsel at Oberheiden PC Can Help

From deciding whether to file a Declaration or Notice to negotiating a mitigation agreement with CFIUS, our attorneys can assist with all aspects of the CFIUS filing process. We handle other CFIUS matters as well; and, with a team that includes former U.S. Department of Justice (DOJ) prosecutors, we are well-versed in the types of national security issues that can raise concerns for the United States government.

FAQs: Seeking CFIUS Approval for a Foreign Investment in the United States

What foreign investments are subject to Committee on Foreign Investment in the United States (CFIUS) jurisdiction?

A foreign investment in the United States is subject to CFIUS review if it involves the acquisition of: (i) a controlling interest in a U.S. business; (ii) a non-controlling equity or voting interest in a U.S. business involved in critical technology, critical infrastructure, or sensitive personal data (a “TID business”); or, (iii) ownership or leasing rights in real estate located within an airport or seaport, or within a certain distance of a government facility or military installation. These are classified as “covered transactions” under CFIUS’s regulations when they involve (either directly or indirectly) a foreign national, foreign business, foreign government, or another foreign party.

When is a foreign investment in the United States subject to CFIUS review?

Foreign investments in the United States are subject to CFIUS review before they close. At a minimum, transaction parties must seek CFIUS’s review 30 days prior to their scheduled closing, though the review process will take more than 30 days in most cases. In particular, if CFIUS seeks to impose conditions to mitigate national security concerns, this can delay the completion date of the review process.

Is there a filing fee for seeking CFIUS review of a foreign investment?

Transaction parties must pay a filing fee when submitting a Notice to request CFIUS review (filing fees do not apply to Declarations). Filing fees are determined based on the value of the transaction and can range from $750 to $300,000.

Is there a penalty for failing to seek CFIUS review of a foreign investment?

Yes, if parties to a covered transaction fail to seek CFIUS review, they can face a penalty equal to the value of the transaction (while CFIUS previously imposed up to a $250,000 failure-to-file penalty, this was revised in 2024).

How long is the investigation period during a CFIUS review?

The investigation period during a CFIUS review is 45 days. This is in addition to the standard 45-day review period for Notices (if transaction parties submit a Declaration and CFIUS determines that an investigation is warranted, it can require the parties to file a Notice). However, for complex transactions, CFIUS reviews can take up to 105 days, and even longer in some cases. If transaction parties need to negotiate mitigation measures or seek presidential approval, this can extend the timeline beyond CFIUS’s standard review windows for Declarations and Notices.

Contact the CFIUS Lawyers at Oberheiden PC

If you need to know more about the CFIUS filing process, we invite you to get in touch. Our senior lawyers work with domestic and foreign parties to help them secure CFIUS approval when necessary, and we help parties structure their transactions to avoid the need for CFIUS review when warranted. To get started with a complimentary initial consultation, please call 888-680-1745 or contact us online today.