Foreign Ownership of Agricultural Land: FAQs & Resource Library

Over the past decade, foreign ownership of agricultural land have grown. As a result, an interest in restricting and monitoring foreign ownership of U.S. agricultural land is growing significantly among federal and state lawmakers.  This page is intended to provide resources and answers to some frequently asked questions concerning foreign ownership and investments in private agricultural land. If you have a question that is not answered below, please contact us.

This information is provided for educational purposes only. If you have concerns that go beyond the scope of what has been discussed in any of the questions below, we encourage you to seek legal advice from a licensed attorney in your area. The questions are meant to provide general information only, and do not constitute any legal advice offered by the National Agricultural Law Center, nor act as a substitute for legal advice and counsel. This resource was last updated March 20, 2024.

MAJOR TOPICS

Q: What is a “foreign ownership law”?

In general, a “foreign ownership law” is a law that restricts certain foreign individuals, foreign entities, or foreign governments from acquiring, transferring, holding, or investing in U.S. real estate, specifically including private agricultural land located within the U.S. For purposes of this resource, the following questions and accompanying answers focus on privately held agricultural land.

STATE LAWS

Q: Are there any states that ban foreign ownership of agricultural land?

There are no states with an absolute prohibition on foreign ownership, however, approximately twenty-four states specifically forbid or limit nonresident aliens, foreign business entities, or foreign governments from acquiring or owning an interest in private agricultural land within the boundaries of their state. To view states’ laws restricting foreign ownership of private agricultural land, see NALC’s Statutes Regulating Ownership of Agricultural Land here.

Some states, such as Arizona, Hawaii, Idaho and Oregon have laws that prohibit foreign ownership of public real estate and farmland; however, only Oregon specifically restricts foreign individuals from purchasing public lands within the state. See Or. Rev. Stat. Ann. § 273.255 which permits “[a]ny individual who…is a citizen of the United States, or has declared an intention to become a citizen, may apply to purchase state lands.” Mississippi has a law (Miss. Code Ann. § 29-1-75) restricting nonresident aliens and corporations from purchasing or owning public lands within the state, which is set to expire on July 1, 2026.

Q: How many states have foreign ownership laws?

Approximately twenty-four states have laws that seek to restrict to some degree foreign ownership or investments in private agricultural land within the boundaries of their state.

Q: What states have a foreign ownership law?

Currently, states that have a law prohibiting or restricting foreign ownership and investments in private farmland include: Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wisconsin.

Other states, such as Georgia, Maryland, and New Jersey have enacted statutes that permit foreign persons to purchase or hold real estate within their state to some degree. However, these states’ laws condition land ownership rights on certain factors. For example, New Jersey’s law expressly provides land ownership rights to “alien friends” who are domiciled and have a residency within the U.S. See N.J. Stat. Ann. § 46:3-18. Maryland provides real property rights to an “alien who is not an enemy.” See Md. Code Ann., Real Prop. § 14-101. Although these laws do not contain language that strictly prohibits foreign ownership of real property within their state, these statutes could be construed as a restriction on foreign investments that are not expressly permitted under these states’ laws.

To view a compilation of each states’ laws restricting foreign ownership of land, specifically farmland, click here.

Q: Do states have similar foreign ownership laws?

Even though approximately twenty-four states have foreign ownership laws, each state has taken its own approach to restricting foreign ownership of farmland within its borders. For example, some states define “agricultural land” and “farming” differently from other states, restrict only certain types of foreign investors, or allow foreign purchasers to acquire a certain acreage amount of farmland.

Q: Why do states’ foreign ownership laws vary?

State laws restricting foreign ownership vary widely and without a generalized or uniform approach likely because many of these states’ laws developed at different “political flashpoints” in our nation’s history. These flashpoints include:

  1. Colonial Period/Signing of the Declaration of Independence
  2. Late 1880’s through the turn of the century, including the enactment of the Territorial Land Act of 1887 (e., westward expansion of the U.S.)
  3. Early 20th century through post-WWII
  4. 1970s, which resulted in the enactment of the federal reporting statute known as the Agricultural Foreign Investment Disclosure Act (“AFIDA”) of 1978
  5. 2021 – Present

The most recent reemerging interest in restricting foreign investments in U.S. land, especially agricultural land, is partly due to a Chinese-owned company purchasing over 130,000 acres near a U.S. Air Force based in Texas. Another transaction that raised concerns among some federal and state lawmakers is the purchase of 300 acres near an Air Force base in North Dakota by the Chinese company Fufeng Group.

Q: What type of foreign investors are restricted under these state laws?

Because each state has taken its own approach to its foreign ownership law, many states restrict different types of foreign investors, such as foreign individuals or nonresident aliens, foreign businesses and corporations, or foreign governments. Additionally, some states restrict certain parties associated with a restricted foreign investor, such as an agent or trustee. For example, Indiana’s foreign ownership law restricts only foreign business entities from purchasing agricultural land while Oklahoma’s law restricts nonresident individuals and foreign businesses and corporations.

Some states’ foreign ownership laws restrict certain investments from specific countries, a trend that primarily emerged during the 2023 legislative session. For example, Virginia’s law restricts a “foreign adversary” from obtaining an interest in agricultural land within the state. The law defines “foreign adversary” as ““any foreign government or nongovernment person determined by the U.S. Secretary of Commerce to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons, as set forth in 15 C.F.R. § 7.4 or such successor regulation, declaration, or statute as may exist from time to time.” In other words, the types of foreign investor subject to Virginia’s restriction relies on the list of countries or governmental regimes determined to be a “foreign adversary” by the U.S. Secretary of Commerce.

Q: How are states’ foreign ownership laws enforced? What are the penalties for noncompliance?

Some states’ foreign ownership laws contain provisions that assign enforcement authority to the state’s attorney general or “a district attorney of the county where the foreign-owned land is located.” Other states provide private enforcement of its foreign ownership law, meaning a resident of the state in which the farmland is located can file a lawsuit to enforce the restriction against a foreign party. These enforcement provisions generally direct the enforcing parties to file an escheat or forfeiture action against a foreign party suspected of violating a state’s foreign ownership law. If the land escheats or forfeits to the state, meaning the state takes title of the land, the foreign party is penalized by losing their legal interest in the agricultural land. Other states prescribe civil (monetary) penalties for noncompliance of its foreign ownership law.

Q: What states have recently proposed laws?

From 2021 through 2022, the following states have proposed legislation that seeks to restrict certain foreign investments in real property and agricultural land located within the boundaries of their state:

In 2023, the majority of states have proposed at least one piece of legislation that seeks to prohibit or restrict foreign investments and landholdings in land—specifically private farmland—located within their state to some degree. So far in 2024, state level proposals have been or are expected to be formally introduced in the majority of states. Some states that are considering legislation do not have a law that restricts foreign ownership of land in their state while other states are considering proposals that would amend their current foreign ownership law. These proposed measures are available on your state legislature’s website by searching pending legislation. Generally, you can retrieve these proposals by searching “foreign ownership”.

Q: Were any of these proposals enacted into law?

In 2021, Arkansas’ SB 312 (enrolled version) was enacted into law, but the original version of the bill sought to restrict foreign investments in the state’s agricultural land. The original version of the bill included identical language and provisions contained in Missouri’s foreign ownership law, but this version is entirely different from the bill that was enacted. The version of SB 312 that was enacted is a reporting requirement law. Accordingly, this law simply requires certain foreign investors to submit to the Arkansas Department of Agriculture a copy of their federal Agricultural Foreign Investment Disclosure Act (“AFIDA”) report they submit to the U.S. Department of Agriculture (“USDA”). AFIDA, as discussed in detail below, is a federal reporting statute that requires certain foreign investors to disclose their U.S. agricultural landholdings.

In 2022, Indiana was the only state to enact a law restricting certain foreign investments in the state’s agricultural land. To read the statutory language of Indiana’s restriction law, click here. In the same year, Mississippi amended its foreign ownership law to protect domestic entities from losing their interest in land through forfeiture or escheat because of the alienage of a former owner of the land. See Miss. Code Ann. § 89-1-23. Also in 2022, both chambers of California’s state legislature unanimously passed a bill (SB 1084) that would restrict foreign governments from owning agricultural land within the state, but Governor Newsom vetoed the bill. To learn more on California’s SB 1084, read NALC’s “California’s Attempt to Restrict Foreign Agricultural Land Investments” article here.

States that enacted a foreign ownership law during the 2023 legislative session include Alabama, Arkansas, Florida, Idaho, Louisiana, Montana, North Dakota, Ohio, Tennessee, Utah, and Virginia. North Dakota enacted two laws in 2023 which restrict certain foreign investments in real property within the state. The North Dakota state legislature enacted HB 1135 which amends the state’s previously enacted foreign ownership law to extend the restriction of agricultural land purchases to foreign governments and foreign government-controlled entities. Additionally, the state enacted SB 2371 which prohibits governments and business entities of a country designated as a “foreign adversary” by the U.S. Secretary of Commerce from acquiring title to any real property within the state. Oklahoma also amended their state’s foreign ownership law in 2023; however, the legislation narrowed their restriction to specifically prohibit foreign acquisitions of land through business entities or trusts that engage in activities or ventures that are illegal under federal law (i.e., the production of marijuana).

Also during 2023, Indiana and West Virginia enacted laws restricting certain foreign investments in real property located within their state, but the instances in which these restrictions arise are limited. Indiana enacted SB 477 (codified under Ind. Code Ann. §§ 1-1-16-1 through 11) to restrict individuals and business entities of China, Iran, North Korea, Russia, or a country designated as a “threat to critical infrastructure” by the governor from acquiring property directly adjacent to a military installation. (Note: This restriction is separate from the one the state legislature enacted in 2022 which restricts foreign business entities from acquiring agricultural land for crop and forestry production.) West Virginia enacted SB 548 (see W. Va. Code Ann. § 11A-3-45a) which restricts individual citizens, entities, or governments designated as a “country of particular concern” by the U.S. Secretary of State from purchasing land located in West Virginia at a public auction. Because of the limited circumstances in which these two restrictions apply, this resource does not include these two laws within the list of foreign ownership laws enacted during the 2023 legislative session. Nevertheless, readers should be aware these types of laws restricting certain foreign investments may exist in different states.

In 2024, eleven states enacted foreign ownership measures. These states include Georgia, Idaho, Indiana, Iowa, Louisiana, Mississippi, Nebraska, Oklahoma, South Dakota, Tennessee, and Utah. Besides Georgia or Mississippi, each of these states amended their state’s foreign ownership law.

Q: Are there any legal challenges to these states’ foreign ownership laws?

On May 22, 2023, a group of Chinese citizens living in Florida and a real estate brokerage firm—whose clients are primarily Chinese and Chinese American—have filed a lawsuit (Shen v. Simpson, No. 4:23-cv-208 (N.D. Fla. 2023)) against the state of Florida alleging that the state’s new foreign ownership law, Senate Bill 264 (“SB 264”), violates the United States Constitution. According to the plaintiffs, SB 264 violates their equal protection rights promised under the constitution because the law restricts their ability to purchase real property because of their race. They also allege SB 264 violates the Due Process Clause and the Supremacy Clause of the Constitution and the Fair Housing Act (“FHA”). Two NALC articles discussing the plaintiffs’ complaint are available here and here. After filing the lawsuit, the plaintiffs sought an injunction to prevent the implementation and subsequent enforcement of SB 264. An article explaining the plaintiffs’ motion for preliminary injunction and the state’s response to the motion can be read on NALC’s website here. Ultimately, the court denied the plaintiffs’ motion by concluding the plaintiffs failed to show a substantial likelihood of winning their case against the state. As a result, the state of Florida may enforce the restrictions prescribed under SB 264. An article discussing the judge’s denial of the Shen plaintiffs’ motion for preliminary injunction is available here.

After the district court denied the plaintiff’s motion to prevent the state from implementing and enforcing their foreign ownership law, the plaintiffs appealed to the U.S. Court of Appeals for the Eleventh Circuit who granted a partial preliminary injunction. As a result, the state of Florida currently cannot enforce its restriction against two individual Shen plaintiffs. However, because the court granted the injunction pending appeal, the injunction is not binding on other appellate courts that preside over the Shen case. Further, the injunction is limited to two individuals, which means the state may continue to enforce its restriction against all other investors subject to their foreign ownership law, including other Shen plaintiffs.

Oral arguments for the Shen case are expected to be set for April 2024, at which time the appellate court will hear arguments on the merits of the case. This means that the court will consider whether the plaintiff will prevail on the case as a whole, which is a significantly different standard than that applied to a preliminary injunction. An article explaining the Eleventh Circuit’s decision is available on NALC’s website here.

Q: Are there any states considering proposals to prevent foreign participation in farm programs?

In 2024, Kentucky (House Bill 575) and Maryland (House Bill 855) were the only two states considering measures to prevent foreign participation in state farm programs. Kentucky’s HB 575 sought to restrict certain individuals and entities domiciled in China, Cuba, Iran, North Korea, Russia, and Venezuela from participating in “programs administered by the Department of Agriculture, Agricultural Development Board, and Kentucky Agricultural Finance Corporation.” This proposed restriction is similar to the foreign ownership measure (HB 500) the Kentucky state legislature considered in 2023. Under Maryland’s HB 855, nonresident aliens who are citizens of China, Chinese business entities, and individuals employed by or associated with the Chinese government would be restricted from participating in state agricultural programs unrelated to regulatory requirements for food or food safety, as well as acquiring agricultural land located within the state. Ultimately, neither Kentucky’s HB 575 nor Maryland’s HB 855 were enacted by their states’ legislature.

Q: Are foreign ownership laws and corporate farming laws the same?

There are similarities in foreign ownership laws and corporate farming laws in that they both restrict certain corporations from acquiring, purchasing, or otherwise obtaining land that is used or usable for agricultural production. However, corporate farming laws restrict the power of foreign or domestic corporations from engaging in farming or agriculture. Proponents of corporate farming laws assert that these laws are aimed at protecting the economic viability of family farms from threats of competition with domestic and foreign corporate-owned or managed farms. Alternatively, proponents of foreign ownership laws generally assert these laws seek to restrict only foreign investments in agricultural land as a way to discourage or prevent foreign competition in agriculture, increased production costs, and possible threats to the agricultural supply chain. Like foreign ownership laws, corporate farming laws vary from state to state, but each establish a general prohibition on corporate farming activities. Currently, nineteen states have statutes or constitutional amendments that prohibit or limit corporate farming: Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Utah, Virginia, and Wisconsin. For more information on corporate farming laws, visit NALC’s “Corporate Farming and Land Ownership Laws” Reading Room here.

The NALC’s “Statutes Regulating Ownership of Agricultural Land” chart, which is available here, identifies the states that have enacted corporate farming laws and provides the relevant state constitutional and statutory provisions. More resources on corporate farming laws are available on NALC’s website here and here.

AGRICULTURAL FOREIGN INVESTMENT DISCLOSURE ACT (“AFIDA”)

Q: Is there a federal foreign ownership law?

Currently, no federal law exists that restricts foreign persons, entities, or governments from acquiring or holding private U.S. agricultural land. While there are approximately twenty-four states that specifically forbid or limit foreign ownership of private farmland within their state, the federal government only restricts certain foreign acquisitions in public lands of the U.S. (see 48 U.S.C. §§ 1501-1508). However, the federal government does monitor certain foreign acquisitions and landholdings in private agricultural land through the Agricultural Foreign Investment Disclosure Act (“AFIDA”) of 1978. The statutory text of AFIDA is in the U.S. Code at 7 U.S.C. § 3501 et seq.

Q: What is AFIDA?

Enacted by Congress in 1978, AFIDA established a nationwide system for collecting certain information about foreign investments and ownership of U.S. agricultural land. Under AFIDA, a “foreign person who acquires or transfers any interest…in agricultural land” is required to disclose their interest in the land to the U.S. Department of Agriculture (“USDA”). Thus, a foreign person who acquires, holds, transfers, or disposes an interest in agricultural land within the U.S. is required to disclose certain information concerning such transactions and investments. This data is compiled into an annual publication that reports the amount of cropland, pastureland, forestland, and other types of agricultural land that is foreign owned. To learn more about AFIDA, read NALC’s article titled Answering to AFIDA: Reporting Requirements of Foreign Agricultural Land Investments here.

Q: Why did Congress enact AFIDA?

According to a U.S. House Report from the Committee on Agriculture (H.R. Rep. No. 95-1570, 2d Sess. (1978)) discussing AFIDA prior to its enactment, Congress was concerned with the economic strains many family farmers were experiencing and the declining number of family-farm operations across the nation. According to the report, “[i]ncreased land prices, higher taxes, escalating costs of agricultural inputs, greater transportation expenses, and other operating costs have combined with low farm product prices to push many farm families to the brink of economic disaster.” The Committee determined that “[i]ncreased foreign investments which forces up prices of U.S. agricultural land is seen by many as” a factor that adds to the economic pressures affecting family-farm operations.

However, the House Report asserts that determining the impact of foreign ownership and investments in farmland “is difficult to gauge…because of the lack of data on the nature, magnitude, and scope of foreign investment activity.” Specifically, the Committee pointed to a study conducted by the General Accounting Office (“GAO”)—published on June 12, 1978—that found that no accurate data exists on foreign ownership of agricultural land, and that none was likely to be produced through the current state and local recording efforts. As a result, Congress enacted AFIDA to collect this data in order to monitor foreign investments in U.S. agricultural land.

Q: Are there federal regulations?

Section 3507 of AFIDA directed USDA to implement regulations “for the purposes of carrying out the provisions” of AFIDA. These regulations are located in the Code of Federal Regulations at 7 C.F.R Part 781.

Q: Is there an agency handbook?

Yes. The Farm Service Agency (“FSA”) has published a handbook to assist the agency in administering the policies, procedures, and requirements of AFIDA. This handbook is available on FSA’s website here.

Q: How do foreign persons report their U.S. agricultural landholdings?

In general, foreign persons are required to disclose their interest(s) in U.S. farmland by delivering a FSA-153 report to the FSA county office in the county where the tract of land is located within 90 days after the date of such acquisition or transfer. However, some transactions are complex or require multiple filings, usually when a tract of land is located in multiple counties, or a foreign person has acquired separate tracts in multiple counties. In these instances, FSA’s AFIDA handbook explains that USDA may grant permission to a foreign person to file their reports directly with the agency.

On December 15, 2023, FSA announced that it is seeking public feedback – due by February 16, 2024 – on how foreign persons report their U.S. agricultural land holdings under the Agricultural Foreign Investment Disclosure Act (“AFIDA”). FSA is proposing to update the AFIDA Report form (FSA-153) so that the reports can include data on long-term leases, data concerning the impacts of foreign investments in farmland on agricultural producers and rural communities, and to gather certain geographic information. According to FSA, these updates to the FSA-153 form will ensure that foreign persons required to report farmland holdings have clear instructions and will help the agency collect the “most precise and meaningful data” as it administers AFIDA. To submit a comment, click here and follow the instructions for submitting a comment. To learn more about FSA’s proposed changes, click here to read the NALC article “USDA Proposes Updates to Foreign Held Agricultural Land Reporting.”

Q: How are AFIDA disclosures used?

The information collected from these disclosures is compiled into an annual report and made public by FSA. As of the date of this writing, the most recent report contains data on foreign ownership of U.S. farmland through December 31, 2022. This report and all previous AFIDA reports are available on FSA’s website here. Section 3505 of AFIDA requires FSA to deliver, every 6 months, a copy of the disclosures to each state department of agriculture (or appropriate state agency) involving agricultural land within its state during the 6-month period.

Q: Are there state-level reporting requirements?

Yes. Some states (Arkansas, Florida, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Wisconsin) require foreign persons and entities to report their purchase or ownership interest in farmland within their state. These state reporting statutes often correspond with the federal reporting law under AFIDA. Pennsylvania does not have reporting requirements separate from AFIDA; rather, the state has enacted a law that requires the Pennsylvania Department of Agriculture to review AFIDA data to ensure compliance with the state’s restriction on foreign ownership of agricultural land. In Virginia, foreign persons and entities are not required to report their agricultural landholdings, but state law requires the Virginia Department of Agriculture and Consumer Services (“VDACS”) to compile an annual report that contains certain information concerning foreign ownership and investments in the state’s agricultural land. VDACS published its first report on July 1, 2023, which is available here. In 2023, the Mississippi state legislature enacted HB 280, which created a committee to study and monitor foreign interests in agricultural land, water rights, and energy production within the state, but no reporting requirement was established under the legislation. NALC staff attorney Micah Brown has testified before Mississippi’s foreign ownership study committee; a recording of his testimony is available here. State-level reporting statutes are compiled on the NALC’s website here.

Q: Who must report under AFIDA?

AFIDA explicitly states that “[a]ny foreign person who acquires or transfers any interest…in agricultural land” is required to disclose the transaction to USDA. 7 U.S.C. § 3501(a). Foreign persons with a direct or indirect interest in agricultural land are required to disclose this interest under AFIDA.

Q: What is a “direct” and “indirect” interest in agricultural land under AFIDA?

A direct interest in farmland means the foreign person has title to land. On the other hand, foreign persons generally have an indirect interest when they hold an ownership interest in an entity, such as a business or corporation, that has title to the agricultural land. In either case, individuals and entities that fall within the scope of “foreign persons” under AFIDA are likely required to disclose their ownership or leasehold interest.

Q: What is a “foreign person” under AFIDA?

AFIDA defines “foreign person” as an individual who is not: “a citizen or national of the United States”; “a citizen of the Northern Mariana Islands or the Trust Territory of the Pacific Islands”; or someone “now lawfully admitted to the United States for permanent residence, or paroled into the United States, under the Immigration and Nationality Act.” 7 U.S.C. § 3508(3)(A).

Additionally, the term “foreign person” includes foreign governments and entities organized under the laws of a foreign government or its principal place of business is located outside the U.S. Further, a U.S. entity is considered a “foreign person” under AFIDA if a foreign individual, entity, or government holds “a significant interest or substantial control” over the domestic entity. 7 U.S.C. § 3508(3)(C). Therefore, a “foreign person” subject to the reporting requirement under AFIDA includes nonresident individuals, foreign businesses and corporations, and foreign governments.

Q: What is a “significant interest or substantial control”?

Foreign persons have a “significant interest or substantial control” of a domestic entity when a foreign person or multiple foreign persons who are “acting in concert” collectively hold 10% or more interest in the domestic entity. Foreign persons that “may not be acting in concert” have a “significant interest or substantial control” when they own an interest of 50% or more in a domestic entity. See 7 C.F.R. § 781.2(k).

Q: How does AFIDA define “agricultural land”?

Under AFIDA, the term “agricultural land” means “any land located in one or more States and used for agricultural, forestry, or timber production purposes.” 7 U.S.C. § 3508(1). AFIDA’s associated regulations further define “agricultural land” as land totaling 10 or more acres in the aggregate that is used for forestry production or land currently used, or used within the past 5 years, for farming, ranching, or timber production. 7 C.F.R. § 781.2(b). Land totaling less than 10 acres in the aggregate that generates annual gross receipts exceeding $1,000 from the sale of agricultural or timber products is considered “agricultural land.” Land used for forestry production is considered “agricultural land” when 10% of the land is “stocked by trees of any size, including land that formerly had such tree cover and that will be naturally or artificially regenerated.” 7 C.F.R. § 781.2(b).

In general, farming, ranching, and timber production means growing crops, livestock, or trees. Under AFIDA, farming, ranching, and timber production includes activities listed under the U.S. Department of Labor’s Standard Industrial Classification Manual except for the activities set forth in Major Group 07 (Agricultural Services), Industry Group 085 (Forestry Services), and Industry Group 091 (Commercial Fishing). Some activities listed in these classifications include soil preparation services, crop services, other animal services, contracted timber production services, forestry marketing and management plans, and catching or taking of certain fish for a commercial purpose. Accordingly, engaging in these types of activities would not warrant an AFIDA disclosure.

Q: How does AFIDA define “any interest” in agricultural land?

Under AFIDA, “any interest” in agricultural land means “all interest acquired, transferred or held in agricultural lands by a foreign person.” 7 C.F.R. § 781.2(c). An “interest” also includes leaseholds that are 10 or more years. There are certain types of ownership or investment interests in agricultural land that are excluded from the meaning of “any interests,” such as security interests, leases less than 10 years, contingent future interests, and interests solely in mineral rights. For a complete list of the types of interests excluded from AFIDA’s reporting requirement, see 7 C.F.R. § 781.2(c)(1)-(6).

Q: What information must a foreign person include in their disclosure?

The information a foreign person must include in their disclosure is listed at 7 U.S.C. § 3501(a) – (b), (e), (f), 7 C.F.R. § 781.3, and form FSA-153. Depending on the type of foreign person involved in a transaction for agricultural land, USDA may require the party to provide further information.

Q: What are the penalties for noncompliance under AFIDA?

Foreign persons that are determined by USDA to have violated AFIDA by either failing to report, submitting an incomplete report, or reporting false or misleading information may be subject to a fine up to 25% of the foreign person’s interest in the agricultural land. Late filings may be penalized at 0.1% of the fair market value of the foreign person’s interest in the land for each week the violation continues, up to 25%.

Q: What type of land is under foreign ownership?

AFIDA divides “agricultural land” into four different categories for the report: (1) cropland, (2) pasture, (3) forestland, and (4) other agricultural acreage. According to the most recent AFIDA data, which contains foreign interests through December 31, 2022, 48% of the reported foreign interests in U.S. land are timber or forest, 28% in cropland, and 21% in pastureland and other agricultural land.

Q: How much U.S. agricultural land do foreign persons own?

As of December 31, 2022, foreign persons reported holding an interest in over 43.4 million acres of U.S. agricultural land. This accounts for 3.4% of all privately held U.S. agricultural land and nearly 2% of all land within the U.S. In the prior year’s data, foreign persons reported interests in approximately 40 million acres (or 2.1%) of private agricultural land.

Q: What countries are represented by foreign investors of farmland?

There are foreign investors from over 100 different countries that have an interest in U.S. land. Canadian investors own the largest amount of agricultural and non-agricultural acreage in the U.S. at 14.2 million acres, which represents 32% of all foreign-owned land. Investors from the Netherlands own 12% of all foreign-owned land, Italy is at 6%, the United Kingdom at 6%, and Germany representing 5%.

Q: How much U.S. land does China own?

The most recent AFIDA data reports that China owns 335,636 agricultural acres within the U.S. According to this report, China owns 346,915 acres of agricultural and non-agricultural land, which is slightly less than 1% of all foreign-owned acres.

Q: What state has the highest agricultural acreage of foreign ownership?

The most recent AFIDA data reports that Texas has the most foreign-held agricultural land at 5,435,906 acres, which is 3.4% of all the state’s private agricultural land. Texas is followed by Maine (3,489,957 acres), Colorado (2,472,879 acres), Alabama (2,327,123 acres), Michigan (1,848,191 acres), and Oklahoma (1,790,128 acres). To view all foreign investments by state, see Report 1 (pp. 19-20) of FSA’s most recent AFIDA report, which is available here.

Q: What state has the highest percentage of foreign ownership?

Through December 31, 2022, Maine has 21.1% of its private agricultural land held by foreign persons. Hawaii has the second highest percentage of foreign-held agricultural land (12.8%), followed by Alabama (8.6%), Michigan (8.6%), Louisiana (8.3%), Nevada (8.1%), and Florida (8.0%). Thus, these states account for approximately 26.5% of foreign-owned agricultural land within the U.S.

Q: What changes to AFIDA have been made since its enactment?

On December 29, 2022, Congress amended AFIDA when a spending package for FY23 known as the “Consolidated Appropriations Act, 2023” (“CAA”) (H.R. 2617) was signed into law. Section 773 of the legislation contained amendments to AFIDA. This is the first substantial change to AFIDA since its enactment in 1978.

Q: What changes did the Consolidated Appropriations Act, 2023 bring to AFIDA?

First, the CAA requires USDA to report to Congress on “foreign investments in agricultural land in the United States, including the impact foreign ownership has on family farms, rural communities, and the domestic food supply.” A similar type of report was required under the original language of AFIDA at 7 U.S.C. § 3504, but that provision was repealed in 1998. As required under the CAA, USDA will again be required to report certain data and analysis concerning foreign ownership and investments in U.S. farmland to Congress.

Second, the law requires USDA, within three years, to establish a process so that “foreign persons” required to report their agricultural landholdings under AFIDA can submit their disclosure electronically. Currently, foreign persons required to disclose their interests in U.S. farmland to USDA must generally complete and submit form FSA-153 to the FSA office in the county where the land is located. Thus, under the direction of the CAA, USDA must make disclosures available for online submission.

Third, the CAA directs USDA to establish “an internet database that contains disaggregated data from each disclosure submitted.” The database will include data from every disclosure submitted to USDA since the implementation of AFIDA, and all future disclosures submitted to the agency. The law requires USDA to organize the database information into two separate categories of foreign persons: (1) foreign individuals and (2) foreign persons that are not individuals or a government (i.e., foreign business entities). For investments of a foreign individual, the database will indicate and be organized based on the citizenship of the individual. If the “foreign person” is a foreign business, the data will be organized based on (i) the nature of the business entity; (ii) the country where the foreign business entity is organized; and (iii) its principal place of business. Although the CAA requires USDA to establish a database that provides information concerning foreign ownership and investments in U.S. agricultural land, the law requires the agency to implement a “process to ensure the protection of personally identifiable information.”

Q: Is Congress considering amendments to any provisions of AFIDA?

Yes, there are multiple proposals introduced in the 118th Congress (2023-2024) which seek to amend certain provisions of AFIDA. For example, the Not One More Inch or Acre Act (S. 1136) seeks to amend the penalty provision under AFIDA. Under current law, persons determined by USDA to have violated AFIDA are subject to a fine up to 25% of the foreign person’s interest in the agricultural land. This piece of legislation would direct USDA to impose a fine no less than 10%, or more than 25%, of the fair market value of a violator’s interest in the agricultural land. A bill introduced by Representative Mary Mill (R-IL-5) (H.R. 1789) seeks to require USDA to impose penalties that are “at least 50 percent” of the fair market value of the land. Another proposal, the Foreign Agricultural Restrictions to Maintain Local Agriculture and National Defense Act of 2023 (“FARMLAND Act”) (S. 2060; H.R. 5078), would amend AFIDA to require USDA to conduct investigations into efforts to steal agricultural knowledge and technology and to disrupt the U.S. agricultural base.

Other measures seeking to amend certain provisions of AFIDA include the Protecting America’s Agricultural Land from Foreign Harm Act of 2023 (S. 926), the Security and Oversight for International Landholdings Act (“SOIL Act”) of 2023 (S. 1066), and the Farmland Security Act of 2023 (S. 2382) which was also considered in the 117th Congress. The 118th Congress is also considering the AFIDA Improvements Act of 2024 (S. 1066) which would provide USDA the authority to investigate and validate agricultural land transaction disclosures submitted to the agency, and ensure that foreign investors have complied with the AFIDA reporting requirements. Further, the House and both Senate 2024 Farm Bill proposals (available here, here, and here) contain provisions which seek to amend AFIDA.

On September 27, 2023, the Senate Agriculture Committee held a hearing on foreign ownership of agricultural land. At the hearing, the committee expressed concerns about the quality of data presented under the AFIDA system and questioned whether the reporting system guarantees that USDA receives complete and accurate filings from every “foreign person” who is required to disclose their interest in U.S. agricultural land. NALC director Harrison Pittman testified before the committee at the hearing as an expert witness. To view a recording of the hearing, click here.

Q: What other actions has Congress taken concerning AFIDA?

Aside from these legislative proposals, Congress has also requested an investigation in foreign farmland ownership. On October 1, 2022, U.S. House Republicans sent a letter to the Governmental Accountability Office (“GAO”) requesting a study on foreign transactions and acquisitions in U.S. agricultural land and its “impact on national security, trade, and food security.” The group of policymakers also requested this study to evaluate USDA’s procedures for collecting AFIDA data and whether these procedures ensure accurate disclosure of foreign ownership in U.S. farmland. The letter—including a complete list of issues House Republicans want GAO to address in a study—is available on the Republican’s House Committee on Agriculture website here.

On January 18, 2024, the U.S. Government Accountability Office (“GAO”) published a report detailing its findings from a review of foreign investments in U.S. farmland. According to GAO, FSA’s process of collecting data through FSA-153 paper form is “flawed.” Under the report, GAO provides recommendations as to how USDA can improve the reliability of AFIDA data and enhance sharing this data with other federal authorities. The full report is available on GAO’s website here.

Q: Has GAO conducted similar studies in the past?

This is not the first time Congress has requested GAO to conduct a study concerning foreign investments in U.S. agriculture. For decades, several policymakers, congressional committees and subcommittees, and federal agencies have requested GAO to analyze and assess information and data on foreign investments in U.S. real estate, specifically agricultural land. As a result, dating back to 1978, GAO has published several reports related to foreign investments and what effects these investments have on the U.S. Some of these reports are listed by date below:

Q: Besides AFIDA, are foreign investors subject to other reporting requirements?

AFIDA is not the only reporting requirement that foreign business entities are responsible for. A newly implemented regulation, written under the authority of the Corporate Transparency Act (“CTA”), added further disclosures. On January 1, 2024, the CTA went into effect. Many entities, particularly small businesses, operating within the U.S. are now required to disclose information about their ownership structure to the United States Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”).

In general, the CTA requires all reporting companies to report their beneficial owners (individuals who own at least 25% of the ownership interest in the company or exercise substantial control over a reporting company). While the CTA applies to certain domestic businesses, certain foreign entities that are registered to do business in the U.S. are also subject to the law’s reporting requirements. Further, interests held by a foreign individual or entity in a U.S. business may also require disclosure to FinCEN as part of the CTA’s reporting requirements. Foreign investors and entities that fail to satisfy the CTA’s and AFIDA’s reporting requirements may be subject to civil and criminal penalties. For more information on the CTA’s requirements for foreign entities, read the NALC article “Who Owns the Business? Corporate Transparency Act and Foreign Entity Disclosures” here. A more in-depth discussion on the CTA is available on Iowa State University’s Center for Agricultural Law and Taxation website here.

FEDERAL PROPOSALS

Q: Is there a federal foreign ownership restriction?

Currently, no federal law exists that restricts foreign persons from acquiring or holding U.S. agricultural land. The federal government only monitors foreign investments in U.S. agricultural land through AFIDA.

Q: Has Congress proposed a federal restriction?

Yes, there were numerous proposals introduced in the 117th Congress (2021-2022) that sought to increase oversight and restrict foreign investments and acquisitions of U.S. land. Some of these measures sought to only prohibit the Chinese government and Chinese-owned entities from owning or investing in agricultural land, such as the Countering Communist China Act (H.R. 4792) and the Prohibition of Agricultural Land for the People’s Republic of China (H.R. 7892). Other measures (H.R. 4502; H.R. 8239; H.R. 8294) sought to compel USDA to take steps to prevent companies owned by China, Russia, North Korea, and Iran from purchasing agricultural land within the U.S. The 117th Congress also considered measures that sought to restrict foreign investments not only in agricultural land, but all public and private real estate located in the U.S., such as the Securing America’s Land from Foreign Interference Act (S. 4703/H.R. 3847) and the Protecting our Land Act (H.R. 8652).

For more information on the federal proposals introduced in the 117th Congress, read NALC’s article Congressional Considerations on Restricting Foreign Investments in U.S. Agriculture here.

Currently, the 118th Congress (2023-2024) is considering several proposals that seek to restrict certain foreign purchases and acquisitions of U.S. land. Some of these measures were considered during the previous legislative session, but have been reintroduced during the current congressional session, such as the Prohibition of Agricultural Land for the People’s Republic of China Act (H.R. 809), the Protecting our Land Act (H.R. 212), and the Securing America’s Land from Foreign Interference Act (H.R. 344).

The Protecting our Land Act seeks to require the President to “direct the heads of Federal departments and agencies to promulgate rules and regulations to prohibit the purchase of public or private real estate…by a foreign adversary, a state sponsor of terrorism…any agent or instrumentality…or any person owned or controlled by or affiliated with” such foreign parties. The Securing America’s Land from Foreign Interference Act would direct the President to “take such actions as may be necessary to prohibit the purchase of public and private real estate…by members of the Chinese Communist Party and entities that are under the ownership, control, or influence” of the Chinese government.

Further, the Promoting Agriculture Safeguards and Security Act (“PASS Act”) of 2023 (S. 168/H.R. 683) was reintroduced in the 118th Congress. The original legislative text introduced in Congress sought to require the President to prohibit transactions that “would result in control by a covered foreign person,” which includers individuals or entities that are domiciled or acting on behalf of China, Russia, Iran, or North Korea, “of or investment by a covered foreign person in a United States business engaged in agriculture or private real estate used in agriculture.”

On July 25, 2023, the Senate voted 91-7 to include the PASS Act as an amendment to the National Defense Authorization Act (“NDAA”) for the 2024 fiscal year (S. 2226). The version of the PASS Act included as an amendment to the NDAA was different from the version originally introduced in Congress. Essentially, the PASS Act amendment would require the Committee on Foreign Investments in the United States (“CFIUS”) to review investments in U.S. agriculture, including farmland, by China, Iran, North Korea, and Russia to determine whether the investment presents a threat to U.S. national security. For more on the PASS Act amendment included in the Senate’s version of NDAA, read NALC’s article titled Senate Votes to PASS a Foreign Ownership Law, available here.

The PASS Act was not included in the House version of the NDAA for the 2024 fiscal year (H.R. 2670), which was the version ultimately enacted by Congress. However, H.R. 2670 did include a provision which requires the Secretary of Agriculture to enter into an agreement with the Director of National Intelligence to create the Intelligence Community Counterintelligence Office within the Department of Agriculture. Primarily, the duties of the Intelligence Community Counterintelligence Office are to advise the Secretary of Agriculture “on methods to improve the counterintelligence posture of the Department [of Agriculture],” and to “establish counterintelligence partnerships to improve the counterintelligence defense of” USDA. Overall, this intergovernmental partnership may support USDA in identifying and responding to foreign efforts to threaten U.S. agriculture, which may include investments and acquisitions in the U.S. agricultural industry.

An amendment to the Agriculture and Rural Development Appropriations bill (H.R. 4368) for FY24 was adopted by the House Appropriations Committee by a vote of 34 to 26, which seeks to require USDA to prohibit purchases of U.S. agricultural land by “nonresident aliens, foreign businesses, or any agent, trustee, or fiduciary associated with Russia, North Korea, Iran, or the Communist Party of China.” Ultimately, H.R. 4368 failed to pass the House.

Other measures that have been introduced in the 118th Congress include the This Land Is Our Land Act (S. 684), which seeks to restrict certain foreign individuals and entities domiciled in or associated with China from obtaining an interest in farmland, and the Saving American Farms from Adversaries Act (H.R. 840), which would require the President to take actions necessary “to prohibit the purchase of public or private real estate…by any foreign person” for a five-year period. The No American Land for Communist China Act (S. 4978; H.R. 8693), seeks to require the President to restrict individuals and businesses associated with the Chinese government from acquiring real estate located adjacent to certain federal lands located within the U.S. Further, the Countering Communist China Act (H.R. 7476) would require USDA to take actions to restrict Chinese-owned business entities from purchasing U.S. agricultural land and would also require the President to restrict investors from China, Iran, North Korea, and Russia from purchasing or leasing farmland within the U.S.

Q: What about the 2024 Farm Bill?

Currently, the Farm Bill proposals in the House and Senate each contain provisions on monitoring foreign investments in U.S. agricultural land. Senate Agriculture Committee Chairwoman Debbie Stabenow (D-Mich.) has introduced a section-by-section summary of the Rural Prosperity and Food Security Act, which seeks to update AFIDA’s reporting requirements. Specifically, the bill seeks to require foreign persons who enter into a leasing agreement for 5 years or who hold at least 1% interests in agricultural land would be required file an AFIDA disclosure report to USDA. Further, the measure would also establish civil penalties for shell entities that fail to comply with the AFIDA reporting requirements. Senate Agriculture Committee Ranking Member John Boozman has also released title-by-title summaries of the Senate Minority, which also addresses foreign ownership of U.S. agricultural land by amending AFIDA. Meanwhile, House Chairman Glenn Thompson (R-Pa.) has introduced the Farm, Food, and National Security Act of 2024 (H.R. 8467). Chairman Thompson’s Farm Bill summary proposes reforming “certain reporting requirements under the Agriculture and Foreign Investment Disclosure Act (AFIDA) to ensure accuracy and transparency of date on farmland owned by foreign persons or entities.” The information provided here will be updated once more information is available.

MISCELLANEOUS

Q: How do other nations handle foreign participation or investments in agriculture?

Some countries or governments allow foreign persons and foreign entities to invest in their agricultural industry and agricultural land located within their borders. For example, the Netherlands has an “open market” approach to land ownership, meaning the government allows foreign individuals and entities to acquire and hold real property, including agricultural land, within the country. All real property transactions, including those involving foreign investments, must be recorded within the Dutch Land Registry. While not a restriction on investments in farmland located within the Netherlands, the country requires land zoned as “agriculture” to remain in agricultural production and cannot be converted into a non-agricultural purpose without prior authorization from the government.

Some countries, like Australia, generally permit foreign purchases of the agricultural land, but some foreign investments are subject to screening by the government to ensure the foreign investments are in the interest of their nation. These screening procedures are similar to CFIUS’ assessments of certain foreign investments in U.S. businesses. In Australia, most foreign purchases of its farmland over AUD 15 million (USD 11 million) are subject to the government’s screening process. However, the screening threshold for U.S. non-government investors is AUD 1.34 billion (USD 950 million). Foreign investors of Australian agricultural land must record their landholding interests on the government’s foreign ownership register and are subject to the information gathering activities of the Australian Tax Office.

Other countries place some restrictions or completely prohibit foreign acquisitions of agricultural land. In some countries, restrictions on foreign ownership and leases of agricultural land are established at the federal level while other nations allow the states or provinces located within their borders to enact restrictions. For example, Brazil’s federal government has enacted certain restrictions on foreign farmland investments. In Brazil, according to the U.S. Secretary of State, “foreigners can only lease or buy up to 25 percent of the overall land area in each municipal district for use as agricultural land,” and “no more than 10 percent of agricultural land in a municipal district may be owned or leased by foreign nationals from the same country.” Congressional approval is required for a foreign investor to acquire large plots of Brazilian farmland. In Canada, restrictions on foreign investments in land, including agricultural land, is primarily left to the country’s provinces. Accordingly, some provinces of Canada have no restrictions while other provinces prohibit or restrict foreign investments in land located within the boundaries of their province.

Information concerning the restrictions which non-U.S. countries place of foreign investments in real property, especially agricultural land, is available through the U.S. Department of State’s Investment Climate Statements. The Investment Climate Statements are published annually and provide the investment climates and market conditions of more than 165 countries and economies. The 2024 Investment Climate Statements are available on the Department of State’s website here.

Q: Can foreign persons participate and receive benefits through USDA programs? What about foreign persons participating in USDA programs?

There are some USDA-administered programs, such as certain Disaster Assistance programs, which foreign persons and entities are not eligible to participate. However, foreign persons and entities are generally eligible to participate in farm programs if they meet particular eligibility requirements. In terms of these programs, a “foreign person” is someone who is not a U.S. citizen or lawfully admitted for permanent U.S. residence under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and possesses a valid Alien Registration Receipt Card. See 7 U.S.C. § 1308-3(a). A “foreign entity” is a corporation or other legal entity in which more than 10% of the ownership is held by a foreign person(s). See 7 U.S.C. § 1308-3(b). To receive program benefits, foreign persons or entities must satisfy the “foreign person rule.” See 7 U.S.C. § 1308-3; 7 C.F.R. Part 1400, Subpart E. To satisfy this rule, a foreign person or entity must meet the “actively engaged in farming” criteria, which requires the foreign person or entity to contribute significant capital, land, and labor to a farming operation.

Q: Is Congress considering any proposals to prevent foreign participation in farm programs?

Yes, there is legislation that has been introduced in the 118th Congress that seeks to restrict foreign persons from participating in certain USDA-administered programs. For example, the Protecting America’s Agricultural Land from Foreign Harm Act (S. 926/H.R. 3357) seeks to require the President to take necessary actions to prohibit certain foreign persons from participating in programs administered by USDA. Similar to these measures, the Countering Communist China Act (H.R. 7476) seeks to require the President to restrict some foreign participation in farm programs. Another bill, the FARMLAND Act (S. 2060), would restrict foreign participation in farm programs if enacted.

Information on federal proposals from the 117th Congress to restrict foreign persons from investing and participating in the agricultural sector is available on NALC’s website here.

Q: Has Congress proposed legislation to increase oversight of foreign investments in agriculture?

During the 118th Congress, a number of bills have been introduced that seek to amend the Defense Production Act (“DPA”) of 1950 to place the Secretary of USDA in the Committee on Foreign Investment in the United States (“CFIUS”). The proposals seek to add agriculture as an industry under CFIUS’s jurisdiction include:

  • Foreign Adversary Risk Management Act (“FARM” Act) (S. 68/H.R. 513)
  • Promoting Agriculture Safeguards and Security Act (“PASS” Act) of 2023 (S. 168/H.R. 683)
  • Security and Oversight for International Landholdings Act (“SOIL” Act) of 2023 (S. 1066)
  • Foreign Agricultural Restrictions to Maintain Local Agriculture and National Defense Act (“FARMLAND” Act) 2023 (S. 2060)
  • Protecting U.S. Farmland and Sensitive Sites from Foreign Adversaries Act (H.R. 4577)
  • Protecting Against Foreign Adversary Investment Act of 2024 (S. 3948; H.R. 7678)
  • Protecting American Agriculture from Foreign Adversaries Act of 2024 (S. 5007; H.R. 9456)

Q: What is CFIUS?

CFIUS is an interagency committee that is authorized by the DPA (50 U.S.C. § 4565) to serve the President in reviewing certain transactions involving foreign investments and acquisitions of American companies and real estate to determine whether a transaction presents a threat to U.S. national security. Essentially, CFIUS has the power to renegotiate, enforce, and impose conditions to transactions (whether pending or already completed) that could potentially impair U.S. national security. In other words, the Committee uses these measures to mitigate any threat to national security that arises from a transaction. CFIUS also makes recommendations to the President on whether to suspend or prohibit a transaction. Ultimately, the President has the authority to suspend or prohibit a transaction that would threaten U.S. national security. Transactions that may pose a risk to the national security, for example, are investments and acquisitions of critical infrastructure, such as transportation, telecommunication, public health, and energy. CFIUS also closely reviews investments in critical technologies. These technologies are created or used by certain U.S. businesses and industries that are essential to the nation’s economic and national security.

In 2018, Congress amended CFIUS’s statutory authorities by enacting the Foreign Investment Risk Review Modernization Act (“FIRRMA”) of 2018 (Title XVII, P.L. 115-232). Under these amendments, Congress authorized CFIUS to review certain non-controlling investments in U.S. businesses involving critical infrastructure and critical technologies. Further, FIRRMA granted CFIUS the power to review foreign acquisitions in U.S. real estate near military installations, airports, and military ports.

On September 15, 2022, President Biden issued Executive Order 14083 which directs CFIUS to consider additional national security factors when reviewing foreign investment transactions. The E.O. did not change CFIUS’s authority, but rather expands areas in which the Committee must consider when determining whether a transaction presents a risk to national security. For example, the E.O. requires CFIUS to consider U.S. supply chains as it relates to agriculture and food security. Additionally, the E.O. directs CFIUS to determine whether a series of investments by a foreign investor could enable them to gain control of that sector, ultimately leading to a risk in national security.

In October 2022, the U.S. Department of the Treasury published CFIUS Enforcement and Penalty Guidelines to describe how the Committee determines violations and imposes penalties. While the Guidelines are non-binding, it details CFIUS’s approach to enforcement actions. The Guidelines are available on the Treasury Department’s website here.

In March 2024, President Biden signed a spending bill, the Consolidated Appropriations Act (“CAA”) of 2024 (H.R. 4366), that contains a provision that adds USDA as a member of CFIUS—on a case-by-case basis—with respect to transactions involving foreign purchases of U.S. agricultural land. In other words, the CAA extended CFIUS’s jurisdiction to include certain foreign investments in agriculture.

On September 11, 2024, the House passed the Protecting American Agriculture from Foreign Adversaries Act of 2024 (H.R. 9456) which seeks to increase governmental oversight of certain foreign acquisitions in U.S. agriculture, including investments in farmland. Specifically, this measure seeks to amend certain portions of the DPA to require the Committee on Foreign Investment in the United States (“CFIUS”) to review transactions involving foreign investments in U.S. agriculture. In the Senate, a bipartisan group of Senators, led by Senator Mike Braun (R-IN), have introduced a companion bill (S. 5007) to H.R. 9456. According to some proponents of these measures, placing USDA as a permanent member of CFIUS will provide leverage to protect the interests of the agricultural industry in foreign investments and acquisitions of U.S. agricultural businesses and land. An article published by NALC discussing the Protecting American from Foreign Adversaries Act of 2024 is available here.

Q: Aside from CFIUS, how else does the federal government regulate foreign investments in the U.S.?

The U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) is authorized to monitor and stop curtain transactions involving specific foreign investors. OFAC is a financial intelligence agency that administers and enforces economic and trade sanctions against certain countries, business entities, and groups of individuals “to accomplish foreign policy and national security goals” of the U.S., according to the Treasury Department. In doing so, OFAC prevents “prohibited transactions,” which are “trade or financial transactions and other dealings in which U.S. persons may not engage unless authorized by OFAC or expressly exempted by statute.”

The executive branch has also established sector-specific national security review procedures. On May 15, 2019, President Trump signed Executive Order 13873 to address “foreign adversaries [that] are increasingly creating and exploiting vulnerabilities in information and communications technology and services” (“ICTS”). In January 2021, the U.S. Department of Commerce (“DOC”) published an interim final rule implementing E.O. 13873 by establishing a process to review transactions involving “foreign adversaries” in the supply chain of ICTS that potentially create U.S. national security and economic risks. Under the rule (codified under 15 C.F.R. Part 7), which became effective in March 2021, when ICTS transactions involve foreign adversaries and pose a risk to national security and the U.S. economy, DOC may prohibit the transaction or propose risk-mitigation measures. A “ICTS transaction” is defined as “any acquisition, importation, transfer, installation, dealing in, or use of any [ICTS].” As of June 2023, DOC has designated China, Cuba, Iran, North Korea, Russia, and the Nicolás Maduro regime in Venezuela as “foreign adversaries.” While this national security review structure may not directly impact agriculture, DOC’s definition of “foreign adversary” is important to some states’ foreign ownership laws. For example, Virginia’s foreign ownership law restricts any “foreign adversary” as determined by DOC from acquiring agricultural land located within their state. See Va. Code Ann. §§ 55.1-507–508.

Q: Why are there foreign investments in states that have enacted a foreign ownership law?

Each state that currently restricts foreign ownership includes exceptions to their restriction. In other words, states’ laws exempt certain foreign parties, agricultural practices, landholdings, and land use activities from the restriction. Many of these states’ laws include an acreage limit or cap to its restriction. In other words, a state’s foreign ownership law will only restrict a foreign investment in farmland if the investment exceeds a specified number of acres. For example, Wisconsin’s foreign ownership law caps foreign ownership to 640 acres before the restriction applies.

Some states also permit foreign persons to convert agricultural land into some use other than farming. Other states have an “estate exception” for situations where a foreign person obtains ownership of agricultural land by inheritance or through the terms of a person’s will. Further, other states’ laws permit foreign persons to acquire and hold title to farmland resulting from their enforcement of a lien against the property.

Additionally, foreign persons obtain an interest in real estate using different types of business entities and trusts that invest in property, such as a real estate investment trust (“REIT”).

Q: What is a REIT?

In general, a REIT is an entity that invests, owns, and operates real estate that generates income. Created in 1960 with the enactment of the REIT Act (a provision of the Cigar Excise Tax Extension Act), REITs were established to provide real estate investors the same benefits offered to mutual funds investing in stocks. REITs invest in various types of real property, such as office buildings, housing units, farmland, and forestland. The income generated from REIT-owned property is then distributed to its investors. Thus, REITs provide persons the ability to invest in real estate without having to hold the property directly.

Investing in REITs are sometimes attractive to foreign investors for a couple of reasons. First, a foreign person investing in a REIT is not taxed on their worldwide income, just the dividends from their REIT investment. Second, investing in REITs permit foreign investors the ability to hold an ownership interest in U.S. property without having to manage the day-to-day activities of the property. In other words, foreign persons do not have to reside—or spend a significant number of days—in the U.S. to profit on income-producing U.S. property.

For more information on REITs and foreign investments in REITs, see the Congressional Research Service’s article titled Real Estate Investment Trusts (REITs) and the Foreign Investment in Real Property Tax Act (FIRPTA): Overview and Recent Tax Revisions here.

Q: What are some resources to learn more on foreign ownership of agricultural land and foreign investments in U.S. agriculture?

NALC Publications and Resources

Other Publications and Resources

Statutes and Regulations