USA Law and Practice Contributed by: G. J. Ligelis Jr., Christopher K. Fargo, Alyssa K. Caples and Margaret T. Segall, Cravath, Swaine & Moore LLP
subject to the CFIUS’s authority with respect to “con - trol” transactions. The CFIUS maintains the authority to change the list of exempt countries. Mandatory Filings Two categories of transactions, both involving TID US businesses, must be filed with the CFIUS at least 30 days prior to the completion date of the transaction. First, certain covered transactions must be filed if the target is a TID US business and a foreign government has a substantial interest in the foreign investor. Sec - ond, certain covered transactions must be filed if the target is a TID US business that deals with one or more critical technologies, and a licence or other US regulatory authorisation would be required to export the critical technology to the foreign investor or certain persons that own or “control” the foreign investor. As of October 2025, failure to submit a mandatory filing when required could result in civil monetary pen - alties of up to USD5,000,000 or the value of the trans - action, whichever is greater. Process and Timeframe Parties may submit a transaction to the CFIUS by either making a short-form filing (a “declaration”) or a long-form filing (a “notice”). There is no filing fee associated with submitting a declaration, and the CFIUS must assess the transaction within 30 days of accepting the declaration. However, the CFIUS is not obligated to provide the parties with a definitive answer regarding the transaction on the basis of a declaration. Conversely, filing a notice ensures that the CFIUS process will result in a definitive answer as to whether the transaction raises national security concerns. Generally, a notice is filed jointly by the foreign inves - tor and the US target. The filing fee ranges from USD0 to USD300,000 based on the value of the transaction. The CFIUS encourages parties to consult with it in advance of filing a notice, and parties typically file a draft notice before submitting their formal filing. Upon acceptance of a notice, the CFIUS begins a 45-day “review” period during which it considers all aspects of the transaction. If necessary, the review period can be followed by an additional 45-day
“investigation” period, which can be extended to 60 days in extraordinary circumstances. Upon comple - tion of the investigation period, the CFIUS must either determine that it has no unresolved national security concerns and conclude all action under Section 721 with respect to the transaction (referred to informally as “approving” or “clearing” the transaction) or refer the matter to the President of the United States. See 7.4 National Security Review Enforcement for a dis- cussion of the authorities of the President. Non-Notified Transactions The CFIUS has the authority to unilaterally initiate a review of any covered transaction that was not sub - mitted to the CFIUS and with respect to which the CFIUS did not conclude all action under Section 721 (these transactions are referred to as non-notified transactions). The CFIUS identifies non-notified trans - actions that may be of interest through referrals from other executive branch agencies, tips from the public, media reports, commercial databases and notifica - tions from the US Congress. In 2024, the CFIUS for - mally opened an inquiry into 76 non-notified transac - tions. Of these, the CFIUS requested a formal filing from the parties in 12 cases. In addition, there were five instances in 2024 in which parties contacted by CFIUS regarding non-notified transactions voluntarily filed their transaction with the CFIUS prior to receiving a formal request. The CFIUS may initiate a review of a non-notified transaction many years after it was consummated, and this review could result in a forced divestiture if the CFIUS identifies national security concerns. For this reason, even if no mandatory filing is required, parties may choose to file with the CFIUS voluntarily to obtain increased certainty that the CFIUS will not raise concerns in the future. 7.2 Criteria for National Security Review See 7.1 Applicable Regulator and Process Overview for a general overview of the criteria, considerations and analyses associated with the CFIUS process. 7.3 Remedies and Commitments If the CFIUS identifies a risk that arises as a result of a covered transaction, the CFIUS has the authority to negotiate or impose conditions on the parties to
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