I have filed for a Green Card through my employer and am currently on a H1B Visa. Since starting the Green Card process I have moved residence between 2 states. My Company is in Michigan and hence Labor is from Michigan whereas I am now in North Carolina and hence filed I-485 in NC. What are the various reasons which the INS can give for rejecting an I-485 petition?

I assume that you are being petitioned under either the second or third employment-based preference and are processing for an approved labor certification.

According to 20 CFR § 656.21(a), an employer who desires to apply for a labor certification on behalf of an alien shall file with the local Employment Service office serving the area where the alien proposes to be employed. This relates to your eligibility for permanent residence rather than your eligibility to adjust status once your petition for permanent residence is approved.

The labor certification must be filed in Michigan if that is where you propose to actually work as a permanent residence. However, the fact that you have moved your residence in the meantime does not mean that you have filed your labor certification in the wrong jursidiction. As long as you intend to work in Michigan once your permanent residence is approved, this is probably okay. It seems, however, that you have moved permanently to North Carolina and intend to work there once your permanent residence is granted. If this is the case, your Michigan labor certification is not going to help you.

The issue of the adjustment of status is a different issue. An application for adjustment of status is ordinarily filed with the INS district director in the district of the applicant's residence. Once your labor certification is approved, you will file your adjustment of status application in with the INS district office having jurisdiction over your residence, not the proposed workplace.

With regard to statutory eligibility requirements, INA §245(a) specifically requires the following:

1. the alien is eligible to receive an immigrant visa;
2. the alien is admissible to the United States for permanent residence; and
3. an immigrant visa is immediately available to him or her.

Certain persons are also statutorily ineligible for adjustment of status under INA §245(a). Ineligible persons are decribed in INA §§245(c)-(f). The most relevant is INA §245(c) which states that an alien (other than an immediate relative or a special immigrant) who continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States may not adjust status. Therefore, if you have failed to maintain your status while in H-1 status or have violated such status, you may be statutorily ineligible for adjustment of status under INA §245(a).

Adjustment of status under INA §245(a) is also discretionary. Simply meeting the requirements of eligibility does not assure approval. Adjustment can still be denied where negative factors are present. The cause of most discretionary denials is the violation of immigration policies and procedures, particularly the entry in nonimmigrant status with a preconceived intention to remain or take unauthorized employment. Adjustment has also been denied in the following instances: the alien lacks close family ties in the United States; the alien's wife and children are living abroad; recent indicia of poor moral character exist, such as the failure to support children, the alien has been arrested, even though he or she has not been convicted, and the alien has failed to file income tax returns.

Negative factors must be considered and balance with other factors in determining whether favorable discretion will be exercised. Close family ties in the United States is certainly among the most important considerations. For example, the INS takes the position that, in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain.

Even if you are ineligible to adjust status under INA §245(c), you may still be able to adjust under INA §245(i) by paying a penalty fee. The ability to adjust status under INA §245(i) will end on October 1, 1997. Adjustment applicants applying under this provision must obtain their permanent residence by that date.