Authors:
Jennifer Diaz, President, Diaz Trade Law
Amber Pirson, Attorney, Diaz Trade Law

Even when a transaction does not trigger a mandatory filing, Committee on Foreign Investment in the United States (CFIUS) risk does not disappear. While the regime remains technically “voluntary” in many cases, Treasury’s increasingly active non-notified program means that deals can still be reviewed, and potentially unwound, long after closing. As a result, parties must weigh the benefits of filing against the risk of future scrutiny, particularly in sensitive sectors or with higher-risk investors.  

What counts as “voluntary”  

Given the breadth of CFIUS’ jurisdiction to review transactions between US and non-US entities where the latter’s investment implicates U.S. national security, if a deal is not a “covered transaction” (no foreign‑government substantial interest in a TID U.S. business; no critical technology), the filing decision is voluntary, but not risk‑free. CFIUS runs a vigorous non‑notified program that screens thousands of transactions annually and can request (or require) a filing post‑closing. 

Why file voluntarily anyway?

A voluntary filing can deliver “safe harbor” (limiting CFIUS’ ability to initiate a review of the transaction in the future), reduce the risk of a disruptive post‑closing inquiry, and preserve options if a customer or government counterparties expect CFIUS clearance in sensitive sectors (e.g., defense supply chain, advanced computing and AI, biosecurity, or large‑scale personal‑data platforms). 

A practical playbook to reduce CFIUS risk and avoid being flagged 

1) Review the risks of your investor profile and structure. 

Confirm “excepted investor/state” status where applicable, and consider governance that removes control and covered‑investment rights where such restrictions can truly be enforced by both parties (no board/observer, no material non‑public technical info, no substantive decision‑making).  

Be prepared for full upstream ownership transparency (including limited partners [LPs]); CFIUS expects disclosure and may ask for LP info and governance rights—even where fund documents restrict it.  

2) Minimize data, access, and proximity risks. 

In line with other trade compliance measures, implement U.S.‑person‑only access, data localization, encryption, and segregation measures ex ante; for higher‑risk cases, evaluate a U.S. proxy/Special Security Agreement (SSA) or ring‑fencing sensitive assets.  

For real estate adjacency exposure, re‑check the Part 802 installation lists and updated US Census Bureau data: Treasury expanded covered sites and radii, increasing the odds that a real estate component surfaces on CFIUS radar. 

3) Choose the right filing lane. 

Declarations (30 days) work best for low‑risk fact patterns from trusted investors; outcomes include clearance or a request to file a notice. 

Full notices are advisable for complex facts, sensitive buyers/sectors, or where customers and regulators require the certainty of a formal clearance letter; use pre‑notice Committee engagement and draft submissions to tighten timelines.  

4) Anticipate the non‑notified program. 

Treasury coordinates tips, media, databases, and classified reporting to identify non‑notified deals; outreach may arrive months or years post‑close. Have a response plan and contemporaneous memos showing why no filing was mandatory and why the risk profile was low.  

5) Track the enforcement environment.

Treasury has finalized rules increasing penalty ceilings and speeding mitigation talks; more penalties have been publicly announced (including eight‑figure cases). Treat certifications seriously, build compliance programs, and monitor post‑clearance obligations. 

Conclusion 

TID U.S. businesses in sensitive sub‑sectors (AI/semiconductors/quantum, critical infrastructure operational technology [OT], bulk sensitive personal data) may draw CFIUS interest, even where there is no mandatory trigger. Given the Committee’s growing interest in non-notified transactions, political momentum to continue trade wars with countries of concern, and that the Committee’s jurisdiction to review transactions is not subject to a statute of limitations, companies should be wary of the Committee’s investigation long after closing – especially where the deal has a nexus to the U.S. government or sectors known as important to U.S. national interests.  

Diaz Trade Law can help you navigate CFIUS requirements, reduce risk, and avoid costly post‑closing surprises. Contact us at info@diaztradelaw.com or 305-456-3830. 

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