USA: An International Trade: CFIUS Experts Overview

Managing an Increasingly Dynamic CFIUS Landscape

The Committee on Foreign Investment in the United States (CFIUS or the “Committee”) has continued to evolve and become a more complex regulatory regime in the years following the enactment of the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). FIRRMA overhauled the CFIUS statute and provided the Committee with significantly expanded authorities and resources to review national security considerations relating to foreign direct investment (FDI) into the United States.

The CFIUS landscape continues to evolve under the second Trump administration. In February 2025, President Trump issued the "America First Investment Policy" National Security Policy Memorandum (NSPM), which emphasises the administration’s commitment to an open foreign investment environment while also easing restrictions on foreign investments in proportion to the investor’s degree of independence from US foreign adversaries, which include the People's Republic of China (including Hong Kong and Macau), Cuba, Iran, North Korea, Russia and the former Maduro regime of Venezuela. The NSPM includes directives for expedited review of investments from allied and partner nations, reduced reliance on open-ended mitigation agreements, and the utilisation of legal tools like CFIUS to restrict foreign adversary-affiliated investments. While new rules and other measures are necessary for implementation, the NSPM is a harbinger of a shift in foreign investment review in the coming years under the second Trump administration.

Related regulatory issues are also presenting evolving challenges for cross-border transactions, including a broad global focus on CFIUS-like FDI review regimes in other countries as well as the US Outbound Investment Security Program pertaining to investments in Chinese companies operating in specific technology areas. More than ever, it is critical for transaction parties to consult with highly experienced counsel and to consider CFIUS (and ex-US FDI) issues early in the deal process to avoid surprises and minimise risks and costs.

Decreasing Reliance on Mitigation Creates a Complicated Calculus for Transaction Parties

In 2024, the most recent year for which data is available, CFIUS required mitigation in substantially fewer transactions than it has historically. Only 9% of covered transaction notices filed were cleared with mitigation in 2024, down from 21% in 2023 and 23% in 2022. This is a notable decrease, particularly because the drop in mitigation occurred before President Trump issued the NSPM, which specifically outlined the administration’s intention of ending the use of “overly bureaucratic, complex, and open-ended ‘mitigation’ agreements for United States investments from foreign adversary countries.” The 2024 decrease is likely reflective of multiple variables, including a decline in filings involving certain sensitive sectors that are more likely to illicit mitigation requirements from the Committee, such as semiconductor manufacturing and scientific research and development services. While CFIUS’s reliance on mitigation may decrease in the years ahead, CFIUS is more empowered than perhaps at any time in its history and presidential involvement is an increasing possibility for those transactions with significant national security implications.

Increasingly Aggressive Non-Notified Process Changes the Equation on Voluntary Filings

CFIUS is increasingly focusing attention, staffing and other resources on monitoring non-notified transactions. In 2024, CFIUS considered thousands of non-notified transactions, making 76 formal inquiries to parties that did not notify their transactions to CFIUS which ultimately resulted in 12 filings being requested (15%) and five more being made voluntarily without a CFIUS request. Chris Pilkerton, Treasury’s new Assistant Secretary for Investment Security, at a January 2026 Congressional Hearing of the House Financial Services Subcommittee on National Security, stated that a top goal for CFIUS was prioritising non-notified actions by expanding outreach and detection effort. CFIUS’s expanding non-notified prioritisation is also illustrated by Treasury’s 2024 rulemaking that sharpened CFIUS's procedures and enforcement authorities. These enhanced authorities include, for example, the ability for CFIUS to impose much larger monetary penalties and subpoena information from third parties in a wider range of circumstances. The possibility of non-notified outreach remains a critical factor in determining whether to notify transactions to CFIUS voluntarily.

CFIUS is Focused on Monitoring and Enforcement 

In 2022, CFIUS issued its first-ever penalty and enforcement guidelines. The guidelines officially put parties on notice that CFIUS was shifting towards a greater focus on monitoring and enforcement of existing agreements. Prior to 2022, CFIUS had only announced the issuance of two penalties, one in 2018 and one in 2019. In 2024 alone, however, the Committee assessed four penalties for breaches of material provisions in mitigation agreements. Additionally, the Committee assessed one penalty for submission of a notice and supplemental information both of which contained material misstatements. Transaction parties should ensure, as they engage in mitigation negotiations, that the measures to which they agree can be effectively implemented operationally by the mitigated company, and that they work to instil a strong compliance posture post-closing. CFIUS will expect full compliance from day one following execution of a mitigation agreement. 

Increasing Number of Presidential Referrals Signals Divestment as a Real Possibility for Closed Transactions

CFIUS has demonstrated an increased willingness to elevate cases for Presidential referral. Presidential decisions were issued regarding two transactions reviewed by CFIUS in 2024 and 2025, both of which were identified through CFIUS’s non-notified process. In May 2024, President Biden issued an Executive Order requiring the divestment of a cryptocurrency mining facility located within one mile of a strategic military installation. This action marks the first Presidential divestment order under CFIUS’ real estate jurisdiction. The second instance of a Presidential referral and ordered divestment centred on a Chinese company’s ownership of a US audiovisual technology company, announced by President Trump in July 2025. The underlying transaction subject to the Presidential Order closed in 2020, five years prior to the CFIUS review, highlighting the risk that older transactions that are not voluntarily filed with CFIUS can still be identified by the Committee and result in Presidential action.

Parties Need to Consider CFIUS-Like FDI Review Regimes in Other Countries

Countries around the world have been establishing or bolstering FDI regimes to review foreign investment for national security and/or public interest considerations. Beyond CFIUS, global FDI issues should be assessed routinely in cross-border transactions to determine whether FDI filings are required or advisable in relevant countries and to understand potential substantive risks and timing considerations for the deal. The FDI regimes in a range of jurisdictions, including the United Kingdom, Germany, France, Italy, and Canada, have taken significant actions on transactions of concern, and FDI regimes continue to proliferate around the globe. The United States has been actively encouraging the development and strengthening of such regimes through engagement with allied governments. Global FDI has now emerged as a key global regulatory consideration in cross-border M&A, and, like CFIUS, should be considered early in due diligence for all multinational deals so that issues can be well understood and effectively managed.