Mandatory vs. Voluntary CFIUS Filings: Triggers, Timing, and How to Report a Mandatory Transaction
Authors:
Jennifer Diaz, President, Diaz Trade Law
Amber Pirson, Attorney, Diaz Trade Law
The Foreign Investment Risk Review Modernization Act (FIRRMA) created limited mandatory filing requirements—departing from the Committee on Foreign Investment in the United States (CFIUS)’s historically voluntary regime—and Treasury has continued to sharpen enforcement tools and penalties. Understanding when a filing is compulsory (and how to do it) reduces execution risk and avoids costly post‑closing surprises.
When a CFIUS filing is mandatory
Two categories trigger a mandatory submission (via declaration, with the option to file a full notice instead):
- Foreign government “substantial interest” in a TID U.S. business. If (i) a foreign government holds a 49%+ voting interest in the foreign acquirer, and (ii) that acquirer obtains a 25%+ voting interest (“substantial interest”) in a TID U.S. business (one involving critical technology, critical infrastructure, or sensitive personal data), a filing is mandatory.
- Critical technology + export authorization nexus. A filing is mandatory if the U.S. target produces, designs, tests, manufactures, fabricates, or develops a critical technology and a U.S. regulatory authorization (e.g., export license) would be required to transfer that technology to any relevant party to the transaction (including certain upstream owners).
Timing rule. For a mandatory filing, the parties must submit at least 30 days before closing. The date of closing or “completion date” is the earliest date upon which the foreign person acquired any […]
