New Advisory Opinions Expand FARA’s Reach

Though there have been few clear signals about the second Trump administration’s approach to enforcement of the Foreign Agents Registration Act (FARA), a handful of recent advisory opinions offer a glimpse into the administration’s priorities, including continued efforts to narrow key exemptions and breathe new life into rarely used statutory provisions. Heading into 2026, these opinions indicate continued efforts to expand the scope of the statute that demand renewed attention for how to comply.

In a February 5, 2025 memorandum from the Attorney General, Department of Justice (DOJ) indicated that it would pursue criminal charges under FARA only in instances of traditional espionage. Such criminal enforcement continues apace, to mixed results. The Attorney General’s memorandum also made clear that DOJ’s FARA Unit should continue to pursue civil enforcement, but signals about DOJ’s approach remain sparse a year into the new administration. Though there have been scattered references to FARA across various federal initiatives—such as September’s National Security Presidential Memorandum listing FARA as one possible tool against perceived domestic extremist groups—there have been few public indications of DOJ’s regulatory priorities and approach to ordinary course FARA compliance. This silence has been all the more difficult to navigate given the substantial changes to the statute’s implementing regulations proposed in last year’s Notice of Proposed Rulemaking (NPRM).

Amidst this uncertainty, 17 new advisory opinions were published by DOJ in October without announcement—before mysteriously being taken down less than a week later—that confirm DOJ’s continued efforts to articulate a broad vision of the statute and more demanding compliance obligations. For example, these opinions underscore how DOJ continues to interpret a key exemption more narrowly than historical practice, in line with proposed rulemaking. The new advisory opinions also cement DOJ’s position that disbursing funds on behalf of or in the interest of a foreign entity can create an agency relationship, and add that other nonpolitical activities, namely acting as a publicity agent, also can lead to agency.

Continued Narrowing of FARA’s Commercial Exemption

The new advisory opinions confirm that, notwithstanding the current status of last year’s NPRM, DOJ continues to adopt a narrow view of the “domestic interest” or “other activities” exemption codified at 22 U.S.C. § 613(d)(2), often referred to as the commercial exemption.

For context, the statute provides that agents engaging in “other activities” (including “political activities”) “not serving predominantly a foreign interest” are exempt from FARA’s registration obligations. Current regulations specify that “person[s] engaged in political activities on behalf of a foreign corporation,” even a state-owned corporation, are exempt from FARA’s registration obligation so long as the agent’s activities neither are directed by nor directly promote the interests of a foreign government or foreign political party.[1] And though the regulation’s text specifies that these activities must further the “commercial, industrial, or financial operations of the foreign corporation” (emphasis added), in practice, DOJ has not limited the exemption to either commercial activities or corporate principals. Accordingly, since the regulation’s modern incarnation was promulgated in 2003, prevailing practice has applied the exemption to any “political activities” on behalf of foreign private entities—even if not state-owned—absent a clear nexus and benefit to a foreign government or political party.

The NPRM would have substantially changed § 613(d)(2)’s implementing regulations by adding a multifactor test to assess whether an agent’s activities “serve predominantly” any foreign interest, among other changes. Under this test, “political activities” advancing any foreign interest, public or private, more than a domestic interest would no longer be exempt. While the NPRM remains in regulatory limbo, several recent advisory opinions appear to have adopted the proposed approach. In four such opinions, DOJ’s assessment of whether domestic interests were present (or absent) played a role in whether the exemption was available. Where foreign interests dominated, DOJ found the exemption was not available. The traditional criteria for the exemption—whether the activities promoted the interests of a foreign government or political party—were secondary concerns.

In an October 11, 2024 opinion, DOJ determined that the § 613(d)(2) exemption was not available for an individual advocating in the United States on behalf of a foreign NGO for certain outcomes relating to a foreign country’s fossil fuel industry. The requester argued that the principal beneficiary would be “[Foreign Country] society and, more generally, the global population as a whole,” rather than a foreign government, because the activities would support the nonprofit’s mission of “accelerating the global transition to clean energy.” DOJ disagreed. DOJ first determined that the activities “would only incidentally serve domestic interests.” Only secondarily did DOJ’s analysis focus on how the activities would benefit the foreign government and the foreign NGO (and specifically the NGO’s political rather than commercial interests).

An April 14, 2025 opinion concerned two foreign governments that retained a foreign company to assist with monetary and non-monetary asset recovery. The foreign company subcontracted with a U.S. firm, the requester, to assist with these services in the United States, including sharing evidence with U.S. government agencies. But the exemption was not available because “the proposed activities would serve the interests of [Foreign Company] and [Foreign Governments 1 and 2], all of which are foreign entities.” Of note, DOJ did not feel the need to elaborate further beyond the fact that the interests were “foreign”; that alone was enough to render the activities not exempt. The opinion then also applied the test from § 613(d)(2)’s current implementing regulations, concluding that the requester’s activities would “directly promote the public and political interests of foreign governments” and thus were not exempt. Although in this instance, the two tests led to the same result, the primacy of the location of the interests is a departure from past practice.

In two other opinions, DOJ found that because domestic interests prevailed, the proposed activities were covered by the exemption. In a January 29, 2025 opinion, DOJ found that the exemption applied to proposed joint ventures between a U.S. company and a foreign company where the joint ventures serve the U.S. company and the foreign company “about equally,” and the joint ventures would encourage establishing manufacturing facilities in the United States. And in a June 9, 2025 opinion, DOJ found that a U.S. nonprofit founded “to build on the work of” a foreign entity by “carrying on the [entities’] common mission” in the United States could take advantage of the exemption because the activities were focused “entirely on addressing conduct and harms in the United States,” even though the mission was “common” to both the domestic and foreign entities. In each of these opinions, DOJ’s § 613(d)(2) analysis led with the balance of domestic versus foreign interests. While these opinions also discussed whether the activities were directed by or directly promoted the interests of a foreign government or political party, the dominance of the interest-balancing framework underscores the overall change in approach.

In another move to narrow the § 613(d)(2) exemption, a May 16, 2025 opinion casts some doubt on whether agents of foreign “non-commercial entities” may benefit from the exemption, contrary to what DOJ had proposed in the NPRM. In that opinion, a U.S. employee of a foreign-headquartered intergovernmental organization (IGO) inquired whether they would need to register for certain activities, including outreach to U.S. officials and companies, acting as a political consultant, and speaking on behalf of the IGO when interacting with U.S. government officials. As part of its reasoning for finding that the individual was obligated to register, DOJ opined that the exemption at § 613(d)(2) did not apply in part because the IGO was not a “foreign corporation” and the activities involved intergovernmental processes rather than “‘commercial, industrial, and financial operations’ associated with corporations.” Prior advisory opinions have not so strictly hewed to these textual limits to deny the exemption.

Indeed, in the October 11, 2024 opinion discussed above, although DOJ ultimately found the exemption did not apply to the proposed activities on behalf of a foreign NGO, there was no mention of the fact that the NGO was not a “foreign corporation.” While DOJ may be trying to draw a principled distinction between IGOs and NGOs, the May 16, 2025 opinion also appears directly at odds with a July 2023 opinion in which DOJ determined that a U.S. consulting firm acting on behalf of an “international humanitarian agency” could avail itself of the § 613(d)(2) exemption. This tension between prior practice (and statements by DOJ) and the strict textual approach embraced in this opinion increases uncertainty for non-commercial organizations.

Expanding Basis to Find Agency

FARA’s “agency” determination is a two-part test that considers both the relationship between the agent and the foreign principal and the activities the agent performs in the principal’s interests.[2] By far the most common type of activities triggering the statute are “political activities,” broadly defined as any attempt to influence the U.S. government or the U.S. public.[3] In recent opinions, however, DOJ has leaned into FARA’s nonpolitical prongs of agency. This emphasis would lead to far more types of registrable activity.

1. Disbursing or Soliciting Funds

One such covered activity is when an agent “solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of [their] foreign principal.”[4] Historically DOJ has rarely used this provision to establish agency. But several of the recent advisory opinions found an agency relationship existed when the U.S. person or organization distributed or solicited funds on behalf of or for the benefit of a foreign entity. These opinions signal not only DOJ’s interest in giving new life to this (previously) moribund prong of the statute, but also its greater interest in different types of relationships. As we advised last November, a U.S. entity receiving funding from a foreign entity to further certain activities in the United States may establish an agency relationship. The new advisory opinions also confirm that U.S. entities disbursing their own funds in a way that advances the interests of a foreign entity with which they maintain a coordinated type of relationship may also be sufficient to establish agency.

In a particularly notable opinion dated October 16, 2024, DOJ determined that a U.S. nonprofit that had partnered with a foreign research institute to host a conference outside of the United States was required to register solely because the U.S. entity used its own funds to pay for certain expenses related to the conference. The contract between the two organizations required the U.S. nonprofit to pay certain expenses in connection with the conference, including the travel costs and other expenses of U.S. policymakers and media invitees. This provision was enough for DOJ to determine that the U.S. nonprofit was acting as a foreign agent and required to register. Strikingly, the fact that the U.S. nonprofit was distributing its own funds, in support of a conference outside the United States, advancing what the requester asserted were its own interests, did not matter. Nor did DOJ articulate any other basis for an agency relationship; these payments alone were sufficient. Relying on this provision as the sole basis for registration itself would be notable, particularly when paired with this type of activity.

In another opinion dated October 28, 2024, DOJ advised a U.S. media company that was owned by a foreign company that it was required to register because, among other reasons, it was paying for its setup and initial operating costs using a loan from its foreign parent entity. Admittedly, this analysis was paired with significant discussion of how the U.S. company was otherwise substantively committing to advance a foreign country’s goals. But this prong being independently sufficient to create an agency relationship is significant given the number of entities, including many nonprofits, that receive some funding from foreign sources.

Finally, a December 2, 2024 opinion found an agency relationship where a foreign country’s ambassador to the United States would invest $200,000 in a U.S. company in exchange for 20% equity interest, because the conduct would constitute “soliciting and collecting” funds from the ambassador, which would then be “disburs[ed] and dispens[ed]” in his interest. DOJ ultimately found that the § 613(d)(1) exemption for certain commercial activities applied.

2. Publicity Agent

An additional type of covered activity under FARA is acting as a “publicity agent,” defined to include publishing or disseminating materials on a behalf of a foreign principal.[5] Historically, DOJ has only focused on this type of activity—along with its cousin, acting as an “information-service employee”[6]—in conjunction with “political activities.” The then Deputy Assistant Attorney General for DOJ’s National Security Division suggested in a December 2020 speech that DOJ should adopt a higher standard when considering registration obligations for just such publicity agents.

However, in the December 2, 2024 opinion discussed above, DOJ determined that the U.S. company receiving an investment from a foreign ambassador would also be acting as a “publicity agent” because the investment funds would be used to develop a variety of feature films. The opinion did not include any discussion of whether the “publicity agent” activities would also constitute “political activities.” Together with the opinions finding agency based on the disbursement or solicitation of funds in the interest of a foreign principal, this opinion finding an additional basis for agency based on acting as a “publicity agent” indicates DOJ’s approach to FARA enforcement is focused on a wider range of activities than only traditional influence-related activities.

Reinforcing the Applicability of the Commercial Exemption to Government Contracting

At the same time, DOJ appears more willing to allow parties to avail themselves of the § 613(d)(1) commercial exemption, at least in the government contracting context. Two new advisory opinions clarify that not all interactions with U.S. government agencies or officials constitute “political activities,” and such interactions therefore may be eligible for the commercial exemption for “private and nonpolitical activities” in furtherance of bona fide trade or commerce.

In an opinion dated January 31, 2025, DOJ determined that a U.S. individual hired by a foreign company to contact federal agencies that may be potential buyers of the foreign company’s products, arrange meetings between the foreign company’s sales representatives and the agency officials, and convey delivery timelines and prices to those agency officials did not need to register because such activities are “nonpolitical in nature.” Although the opinion concluded that such interactions with the U.S. government meant the requester would be acting as an “information service employee” and representing the foreign company’s interest before federal agency officials—each a covered activity—the requester was not engaged in “political activities.” DOJ contrasted “seeking opportunities in reaction to federal policy changes” with “advocating” for favored policies, which would be “political activities.” Because the subject of this opinion intended to contact federal officials “after Congress and federal agencies have broadly determined how they will spend funds, not to affect how Congress and or agencies make high-level budget allocations,” DOJ determined the exemption was available.

Likewise, in an opinion dated May 1, 2025, DOJ determined that a U.S. advisory firm hired to “facilitate possible contracting opportunities for” a foreign company with U.S. government agencies did not need to register because such activities are “nonpolitical in nature” and “in furtherance of the bona fide trade or commerce” of the foreign company because “creating new business opportunities is the manifest purpose of the engagement.”

Outlook

These new opinions, even if no longer available on DOJ’s website, are a clear signal to industry that the registration obligations of foreign agents have not diminished. To the contrary, DOJ appears to be interpreting FARA’s exemptions more narrowly and finding new hooks for agency potentially requiring registration.

[1] 28 C.F.R. § 5.304(c).

[2] See Adv. Op. (Aug. 26, 2024).

[3] 22 U.S.C. § 611(c)(1)(i); 22 U.S.C. § 611(o).

[4] 22 U.S.C. § 611(c)(1)(iii).

[5] 22 U.S.C. § 611(c)(1)(ii); 22 U.S.C. § 611(h).

[6] 22 U.S.C. § 611(c)(1)(ii); 22 U.S.C. § 611(i).