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A foreign investment requires a mandatory CFIUS declaration only if it is a covered transaction and meets at least one of the applicable mandatory-filing tests. The main tests concern certain investments involving critical technologies and certain investments in a TID U.S. business where a foreign government has a substantial interest in the foreign investor. A foreign investor’s nationality or minority ownership stake, by itself, does not settle the question.
How to screen a transaction for mandatory CFIUS filing
Use this sequence to identify the issues that need legal analysis. It is a screening framework, not a substitute for applying the current text of 31 C.F.R. part 800 to the transaction documents and ownership structure.
- Identify the transaction and target. Determine whether the proposed deal could be a covered control transaction or a covered non-controlling investment under part 800. Not every foreign share purchase is covered. Some real-estate transactions are considered separately under part 802.
- Check the critical-technology test. Establish whether the U.S. business produces, designs, tests, manufactures, fabricates, or develops a technology that qualifies as a CFIUS critical technology. Then analyze whether the specified U.S. export-control authorization would be required for a hypothetical transfer to the relevant transaction parties or owners.
- Check the foreign-government test. Determine whether a foreign person is acquiring a substantial interest in a TID U.S. business and whether a foreign government has a substantial interest in that foreign person. The regulatory terms and calculations require review of the actual ownership chain.
- Review exclusions, exceptions, and investor status. Apply any relevant regulatory exceptions to the specific transaction. Do not assume that an exception removes CFIUS jurisdiction altogether, or that an export-control list entry automatically makes an item a CFIUS critical technology.
- Set the filing calendar. If a mandatory declaration is required, plan to file at least 30 days before expected completion. Confirm the regulatory completion date, especially if equity, control, or covered investment rights will transfer in stages.
- Assess CFIUS exposure even if no mandatory test applies. Consider whether a voluntary declaration or written notice is appropriate and whether the transaction may otherwise be within CFIUS’s jurisdiction.
What are the two principal mandatory-filing routes?
The U.S. Department of the Treasury describes two principal routes to a mandatory declaration under part 800. Which route matters depends on what the U.S. business does, what the investor will acquire, the investor’s ownership, and—in the technology route—whether a specified authorization would be required for a hypothetical technology transfer.
| Test | What to establish | Key issue to verify |
|---|---|---|
| Critical-technology route | The U.S. business produces, designs, tests, manufactures, fabricates, or develops one or more CFIUS critical technologies, and the transaction satisfies the regulatory authorization test. | Whether the specified authorization would be required for the hypothetical transfer to the direct acquirer or relevant owners, and whether an exception applies. |
| Foreign-government route | A foreign person acquires a substantial interest in a TID U.S. business, while a foreign government has a substantial interest in that foreign person. | Whether both substantial-interest tests are met after applying the current rules to direct and indirect ownership and any applicable entity or fund provisions. |
These are screening descriptions, not complete statutory or regulatory definitions. The relevant definitions, exceptions, and transaction conditions are in the current part 800 regulations.
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How does the critical-technology test work?
This is not simply a test of whether the company operates in a technology sector. The business must produce, design, test, manufacture, fabricate, or develop at least one technology that meets the CFIUS definition of “critical technologies.” The transaction must also satisfy a separate export-authorization test.
Treasury’s 2020 fact sheet describes the authorization analysis as asking whether a U.S. regulatory authorization would be required for a hypothetical export, reexport, in-country transfer, or retransfer of the relevant technology to the direct acquirer or to a person holding 25 percent or more of the voting interest, directly or indirectly, in that acquirer. In certain circumstances, the analysis also reaches the acquirer’s general-partner ownership chain. The threshold is part of this particular test; it is not a universal rule that an investor below 25 percent can never trigger a mandatory filing.
- Identify each relevant technology and check whether it meets the CFIUS definition, rather than relying only on a broad industry label.
- Determine which authorizations the hypothetical transfer would require and which transaction parties or owners must be considered.
- Check whether a license exception or another regulatory carve-out applies to the specific facts.
An item’s appearance on the Commerce Control List does not, by itself, establish that it is a CFIUS critical technology. Treasury addresses that distinction in its FAQ on export-control list items. The export-control classification and the CFIUS definition must be analyzed separately.
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What is a TID U.S. business?
TID refers to a U.S. business connected to one or more of these categories: critical technologies, covered investment critical infrastructure, or sensitive personal data. The foreign-government route concerns certain covered transactions in which a foreign person acquires a substantial interest in such a business and a foreign government has a substantial interest in that foreign person.
“Substantial interest” is a defined regulatory term, not a shorthand for any particular percentage that can safely be applied without further analysis. Direct and indirect interests may matter, and the rules can require attention to investment funds and other entities in the ownership chain. Review the current regulation and transaction-specific ownership chart rather than relying on the headline ownership percentage alone.
Does a minority investment or foreign-government ownership automatically require filing?
No. A minority investment may be a covered non-controlling investment, but whether it is covered and whether a mandatory declaration is required depend on the applicable definitions and tests. Likewise, foreign-government ownership of an investor is not, standing alone, enough to determine the result: the foreign-government route also concerns the target business, the foreign person’s acquisition, and the defined substantial-interest standards.
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CFIUS can retain authority over some transactions involving excepted investors even where a particular mandatory filing exemption may apply. Treasury’s FAQ on excepted investors explains why that status should be checked against the transaction type and the current rules, rather than treated as a blanket immunity.
When must a mandatory declaration be filed, and what happens next?
Treasury’s 2020 critical-technology fact sheet states that a mandatory declaration must be filed at least 30 days before expected completion. Parties may choose to submit a written notice instead of a declaration.
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Random freezes, missing sound and display glitches usually trace back to one bad driver. Find and replace yours safely.Free scan · under a minuteFor timing, Treasury’s completion-date FAQ quotes the regulatory definition: “The ‘completion date’ is the earliest date upon which any ownership interest is conveyed, assigned, delivered, or otherwise transferred to a person.” If equity transfers before related control or covered investment rights vest, that earlier transfer may determine the completion date and therefore affect the filing calendar. Confirm the proposed sequence of transfers with counsel before setting a closing date.
CFIUS has 30 days to act on a declaration. Treasury describes possible outcomes as concluding action, informing the parties that it cannot conclude action on the declaration and that they may file a written notice, requesting a written notice, or initiating unilateral review.
Treasury’s 2020 fact sheet describes a civil monetary penalty of up to the transaction value for failure to file a required mandatory declaration. Because penalties and regulations can change, check the current part 800 provisions and applicable penalty rules before relying on that maximum in a live deal.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Does no mandatory filing mean CFIUS cannot review the deal?
No. Mandatory filing is narrower than CFIUS jurisdiction. Treasury states that CFIUS may review certain pending or completed transactions even when the parties have not made a voluntary filing, if a Committee member has reason to believe the transaction is within its jurisdiction and may raise national-security concerns. A conclusion that neither mandatory route applies therefore does not, by itself, establish that the deal is outside CFIUS’s reach or that voluntary filing is unnecessary.
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What do the reported filing figures show?
Treasury’s 2024 CFIUS Annual Report says that 116 declarations were assessed in 2024; the parties stipulated that 36 were subject to mandatory filing requirements. This describes declarations assessed in that reporting year and the parties’ stipulations. It is not a count of all foreign investment, a forecast, or a measure of the likelihood that a particular deal triggers a filing.
What should deal parties verify before deciding?
- Whether the proposed acquisition is a covered control transaction or covered non-controlling investment under part 800, or instead involves a separately analyzed real-estate transaction under part 802.
- Whether the U.S. business meets the relevant critical-technology, covered investment critical infrastructure, or sensitive personal data criteria.
- For the critical-technology route, whether the specified authorization would be required for a hypothetical transfer to the direct acquirer and relevant direct or indirect owners, including any applicable general-partner chain.
- For the foreign-government route, whether the foreign person’s acquisition and the government’s interest meet the regulatory substantial-interest tests.
- Whether an exclusion, license exception, or investor-specific exception applies to the actual structure.
- When ownership and relevant rights transfer, so any mandatory filing deadline is measured against the correct completion date.
The key sources for applying these questions are the current 31 C.F.R. part 800 text and Treasury’s CFIUS FAQs, including its declaration, completion-date, excepted-investor, and export-control-list-item answers. Treasury’s fact sheet on the critical-technology declaration rule and its 2024 CFIUS Annual Report provide additional context. Because indirect ownership, export-control authorizations, exceptions, and staged closings can change the result, parties to a live deal should consult qualified CFIUS counsel.
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