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  • Macaca
    04-22 09:07 AM
    Passing On H-1b Costs to the Employee? (http://www.hammondlawfirm.com/FeesArticle07.18.2006.pdf) -- Smart Business Practice or DOL Violation?, by Michael F. Hammond and Damaris Del Valle

    After all the costs associated with an H-1B petition are totaled, the sum can be alarming. In order to offset this cost, some employers ask that the beneficiary, the employee who is being hired, reimburse the company in whole or in part. Which costs may and may not be paid by the beneficiary can be a tricky matter. What follows is an analysis of H-1B costs and who may pay what.

    All deductions from an H-1B worker’s pay fall into three categories: authorized, unauthorized, or prohibited. Authorized deductions can be taken without worry of whether or not such a deduction will lower the employee’s rate of pay below the required wage rate. Unauthorized deductions, counter to what the term may connote, can be taken from an employee’s wage but are considered non-payment and are only allowed if the beneficiary’s wage rate, after the deduction(s), is greater than the required amount listed on the Labor Condition Application (LCA). Unauthorized deductions cannot push the employee’s wage below either the prevailing wage rate or the actual wage rate, i.e. salaries of those similarly employed and qualified at the work site. Prohibited deductions may not be taken from the employee’s pay regardless of the effect they would have on the required wage rate.

    The most straightforward of the deductions is the prohibited deduction. The Training Fee associated with the H-1B petition is the only prohibited deduction associated with the cost of filing an H-1B petition. Rajan v. International Business Solutions, Ltd. and the language in the relevant regulation make it very clear that the Training Fee is to be paid by the employer or a third party; it is not to be reimbursed in part or whole by the employee. This fee must be completely shouldered by the employer or a party who is not the employee.

    Deductions are considered by the Department of Labor (DOL) to be authorized if:

    The deduction is reported as such on the employer’s payroll records,
    The employee has voluntarily agreed to the deduction and such agreement is documented in writing (a job offer which carries a deduction as a condition of employment does not meet this requirement),
    The deduction is for a matter that is principally for the benefit of the employee,
    The deduction is not a recoupment of the employer’s business expenses,
    The amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered, and
    The amount deducted is not more than 25% of the employee’s disposable earning.

    An Education Evaluation arguably qualifies as an authorized deduction. Similar to a translation fee, which is payable by the employee, the employee is benefiting from the evaluation and will be able to use it in the future in his/her private capacity if s/he so wishes. Of course, if the employee is paying for the evaluation, then s/he must be able to acquire a copy of the evaluation so that the future benefit upon which his/her payment is presumed is a real possibility.

    Attorney’s fees associated with obtaining H-4 status for family members accompanying the Beneficiary may qualify as authorized deductions since the Beneficiary is the party who primarily benefits from such fees. In addition, attorney fees associated with visa issuance, assuming that international travel is not a requirement for the position, could be properly considered as authorized deductions. In order to properly deduct the attorney fees associated with these processes, it is important that the attorney break down the specifics of how much is being charged for each element of the H-1B process- this will allow the employer to deduct those fees associated with the retention of the visas for the accompanying family members without concerning itself with the deduction requirements necessary for unauthorized deductions.

    The circumstances surrounding the Premium Processing Fee determine if deduction of the fee is to qualify as authorized or unauthorized. While the speedy decision that the Premium Processing Fee guarantees often benefits both the employer and the employee, it is important to take notice of which party requests and benefits most from premium processing. If the employee has decided to utilize premium processing for his/her own personal benefit, then the employer may be reimbursed by the employee in accordance with the requirements established by the DOL for authorized deductions. If the employer is the party desiring premium process and who will benefit from such processing, then any deductions from the employee’s pay are unauthorized and, as such Deduction of attorney’s fees associated with the filing of the LCA or H-1B and the Base Fee (or I-129 Fee) are considered to be unauthorized. These fees are considered to be the employer’s business expenses and, for this reason, are not authorized deductions. These fees may be deducted from the employee’s pay so long as they do not drop the rate of pay below the required wage rate.

    It is not clear whether or not the Fraud Fee which was implemented in March 2005 is unauthorized or prohibited. The language of the act regarding the Fraud Fee states that “the Secretary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition.”10 Almost identical language is used in the Act to refer to the Training Fee.11 Such similarity could be read to mean that the restrictions of the Training Fee also apply to the Fraud Fee. However, 20 C.F.R. 655 is explicit in saying that the employee cannot pay the Training Fee; no such statement is made regarding the Fraud Fee. The regulation regarding the Training Fee, 20 C.F.R. 655, predates the creation of the Fraud Fee, which may explain this discrepancy. Nonetheless, the language referring to the Fraud Fee is not explicitly prohibitive and an employer may decide to be reimbursed by the employee. If an employer chooses to do so, any deductions from the employee’s salary to pay for this fee must meet the DOL requirements for unauthorized deductions. 12

    Before any payments are made by the employee or deductions are taken from his/her pay to reimburse the employer, it must be determined if such deduction is permitted and if so, whether or not it is authorized or unauthorized. Once these preliminary determinations are made, appropriate steps must be taken to ensure that the DOL’s requirements are met. As a practical matter, there are very few circumstances in which the prospective employee could legally be made to pay for the costs associated with the H-1b process without an employer risking non-compliance and causing significant record keeping.





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  • alterego
    09-15 02:53 PM
    Come on let's be positive:

    EB2 will move to December 2005 within a year.
    EB3 will move to December 2003 within a year.

    POSITIVE is good for the soul REALISTIC is more important for planning.





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  • pbojja
    10-13 02:01 PM
    http://ap.google.com/article/ALeqM5joRRCZn_Du7r-_F3AFHt3eicyQ1gD93IMS1O0


    This is ridiculous , If you are having 11 -26 year old kid or wife , you should be outraged . Dont risk the life for GC , I know its just a vacination but why only for immigrants ?they want to test the vacination on immigrants ?

    If you have a kid do a i-report to CNN , get the attention of media , write to 60 minutes.





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  • chanduv23
    07-11 12:06 PM
    Hello friends,

    My prority will be current in Aug, next month. I filed I485 last july and my I140 is also approved long back in 2006. After filing I485 i do not see any LUD or anything on my case.

    What will be the chances to get my I485 approve ? Do i need to followup / take appointment ( Infopass) etc ?

    Appriciate your thoughts...

    Depends - everything happens random manner. Generally CP filers have advantage in such situations



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  • logiclife
    07-11 11:18 AM
    This is from Rajiv Khanna's Immigration.com (http://www.immigration.com/common/synergybackpay.html), found today.

    Employer to be barred for two years from H-1 and green card filing for willful failure to pay benched employees.

    In a decision entitled "Administrator WHD v. Synergy Systems, Inc." on June 30, 2006, the employer was ordered to pay back wages to two benched (Indian) employees and was directed to be barred from the H-1 AND green card programs for two years. The employer tried to argue that the employees were on unpaid leave of absence. This argument was rejected. It was found that employer had willfully violated H-1B regulations, hence it must be barred from the H-1 and green card filing for at least two years.

    What this tell us is:

    1. Its really not a joke to go around benching people without pay.
    2. All it takes its an official complaint to be filed with Department of labor. And although it takes time, the department of labor would go after such employers and do the neccesary "Treatment" and "therapy" needed to teach such employers a lesson.
    3. It is not the employee's fault if they are not paid wages for the time they spend when they are non-productive, aka, illegal benching-without-pay. Employee's responsibility to find a gainful employment starts ONLY AFTER the employer officially terminates the employee and send USCIS the notice to revoke H1. After that, its the employee's responsibility to maintain status and legality.

    Employers like Synergy are not only a menace to their own employees, they are also a menace to the entire system. The anti-immigrants cite such employers to make their case for their own cause by saying that "H1Bs are exploited and H1Bs are slaves and H1Bs and immigrants are driving down wages". When in reality, H1B employees most earn the same amount or more amount than any other employee on greencard or citizenship. Such few bad apples really provide examples for our opponents on other side to create new sound bites. These are the guys who put us in trouble and provide fodder to Lou Dobbs and programmer's guild(organization against hi-tech immigration).

    I am disappointed that they are barred only for 2 years. Coz after 2 years, I can guarantee that they will be probably back to their old tricks. There is such a thing called RECIDIVISM. A tendency to revert back to previous pattern of bahavior. Pretty much like a dog's tail. No matter how long you keep a dog's tail in a straight tube, as soon as you take it out, it regains its original shape.

    However, 2 years is still 2 years. And I am going to toast to that. CHEERS !!!!!!!!!! :):)

    If anyone here has been an employee of Synergy or is still an employee, you may want to take appropriate steps to change your employer and check the consequence to your immigration status and GC status.





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  • lotta
    07-18 03:01 PM
    Hello guys,

    I am not planning to change my job. So, would my I-140 have an expiration date?

    Do you have any other suggestions? Thank you!

    I-140's do not have an expiration date.



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  • Ramba
    08-13 06:29 PM
    Hi

    Whats your opinion? Do I have a chance with new updated list and 4 more publications and a letter about my leadership role?

    With identical evidence, my EB2-NIW was approved at NSC.

    -Please advice.

    BP

    EB1-EA requires "extrodinary ability". So you need to have national/international merit/awards like olympic medal or nobal prize. Just having PhD and having tons of papers will not necessarly makes a person as "extrodinary". So it is tricky and diffult. It is better to consult a any of your friend, if they got through EB1-EA, or otherwise consult a good lawyer who is capable of making sucsesful EA cases. This forum mainly thros idea on Eb2/EB3 and retrogression issues. You may not find a good answer here.





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  • roseball
    04-04 11:42 PM
    3. If new employer gives me the option to move permanently to its subsidiary in another country, what are the available option for me to continue with green card processing?

    You can convert your I-485 to Consular Processing (CP) and keep your GC process going. Since GC is for a future job, you can work this out with your employer. Basically, your employer has to support you so that when you are called for the consular interview, you need to be able to show documentary evidence that you will be moving back to the US and joining the same job at or above the advertised wage once your GC is approved.


    4. If after going out of the country , I want to come back in future before Green card approval, what will be the available options?

    As long as your I-485 is pending, you can use a valid AP to re-enter. To renew your AP, you need to be in the US. If you convert your I-485 to CP, you will lose your EAD/AP privileges and will only be able to enter US on a valid H1 assuming you are coming here to work and have a job offer from an employer.



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  • pappu
    04-30 11:32 AM
    Please be careful what you post on the forums.
    Immigrationvoice strongly opposes anything that violates the laws of the country. I deleted one of the posts on this thread. Our forums are visited by all kinds of people. We even had lawmaker offices and reporters viewing our website. Senior members are requested to be vigilant and report any post that harms the interest of the organization and community. Senior members should also immediately respond to any such posts so that the discussion is not continued further. Thanks.





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  • windingroad
    04-07 04:56 PM
    My understanding is that one needs a US degree for stamping in Canada.
    Is that still the case ?



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  • satyasrd
    04-29 09:53 AM
    I agree that we desperately need media attention. No one knows our story, about people living in this country for 10-15 years legally without any GC relief.

    Should we organize a rally or contact the media for interviews ?

    Pappu/Admin, any ideas ?





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  • bpadala
    05-18 01:37 PM
    I had the same question and I went with Joseph Kallabhat who was very diigent in answering the query for me. Please email him at joe@insvisa.com and he should respond back in couple of hrs

    Thanks alot



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  • gcforall99
    03-17 10:42 PM
    Received a USCIS email notification today, for my pending 485 (EB3), priority date not current. Waiting for the RFE details, the RFE was only for the primary applicant not for the dependents.





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  • nashorn
    08-12 03:02 PM
    They are still processing application received on July 2nd now. I bet none of the application received on July 3rd and later has not been opened yet. So they are safe.

    Yeah so far only TWO notices though. I am seriously beginning to wonder if filers between July 2 - July 17 are actually going to be penalized coz NOTHING in USCIS is ever "FIFO".



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  • Steve Mitchell
    March 23rd, 2004, 03:14 PM
    Actually a 300mm from the stands would yield some great shots. I hope you can make it happen.
    I am trying to score the publisher's courtside tickets for the Heat game. I'll bring a 300 to the game and see if someone says something from the sidelines there.. :-)





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  • reddymjm
    02-13 03:22 PM
    My daughter can not write yet. I will do that this weekend. I know I am late on this.



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  • indrajal
    11-02 12:11 PM
    Call your employer and ask him for all these documents. These are agreements between your employer and client. He should have these.

    thanks for the reply sir.
    i am kinda confused since i dont work for a consultant , also my company dont have a fixed client.
    I work for on an in-house project which sells services online to different people. We dont go out and sell it, we dont do custom softwares, we help people in doing their paperwork and charge a little fees.
    in this case who is our vendor and client. i am assuming that the employer and petitioner is my boss but i dont know who would the other two be





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  • egoldy
    01-30 04:50 AM
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    Thank you very much. :)





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  • leo2606
    09-26 09:12 PM
    Hey GC_SUCK,

    Do you rememeber what is the status description for 09/10/07 - 09/11/07 LUDs?


    Here are details

    PD: 04-08-02 - EB3-ROW
    Concurrent Filing: 140(PP)/485/EAD/AP - 03-23-07
    I-140: Approved on 03/30/07
    FP:05/11/07
    EAD:Card Received in mail on 06/21/07
    AP:Notice Mailed on 06/21/07
    485 LUD (Last Update):
    03/31/07 - 05/11/07 - 05/14/07 - 09/10/07 - 09/11/07
    I485:APPROVED - 09/18/07
    I485:Approval Notice Mailed - 09/21/07

    Card Received - 09/24/07





    smuggymba
    01-18 09:12 AM
    Go only if you really need to. If it's just a vacation, postponing is a good idea but don't miss out on brother's wedding etc to stay in US.





    smartboy75
    09-28 06:48 PM
    Hi All

    Cheques were encashed for my and my wife's I-485, I-765, I-131 application.

    I have received the receipt numbers for all from the back of the cheques.

    When I access the receipt number for one of the I-765 Uscis shows the following update :

    On September 19, 2007, we received this I765 APPLICATION FOR EMPLOYMENT AUTHORIZATION and request that we waive the filing fee. We have waived the filing fee and mailed you a notice describing how we will process your case. Please follow any instructions on this notice. We will notify you by mail when we make a decision or if we need something from you. If you move while this case is pending, call customer service. We process cases in the order we receive them. You can use our processing dates to estimate when yours will be done. This case is at our NEBRASKA SERVICE CENTER location. Follow the link below to check processing dates. You can also receive automatic e-mail updates as we process your case. Just follow the link below to register.


    What does waived the filling fee mean ?? why did they do that ?? Also if they waived the filling fee, why did USCIS encash the cheques ??

    Anybody in a similar situation ?



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