USCIS is not making a rule - they're just making a question of fact that says that continuous residence has been broken, and the applicant can counter it with evidence. A rule would require USCIS to always raise the question, or the applicant to be unable to respond. They're not doing so.
It's worth noting that there are plenty of unwritten rules based on precedent all over the place. Many immigrants seem to want "black-letter" law to clearly state what one shall and shall not do, so that every situation is covered. While this may seem comforting, in my experience a regulatory situation like this tends to be written for the worst cases and to favor the government the most. Ambiguity can be of benefit to both the state and the person, given the former the ability to deal with egregious cases and the latter the ability for flexibility.
Perhaps I should have been more precise in my use of certain terms in my earlier posts. I use the terms "rule", "rulemaking", and "notice and comment" as defined by the Administrative Procedures Act or APA which governs most of the rulemaking procedures by federal administrative agencies including the USCIS. A "rule" is defined by the APA 551 as "
the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure or practice requirements of an agency." "Rulemaking" is the "
agency process for formulating, amending, or repealing a rule." Rules and regulations are synonymous, thus material found in the CFR are rules according to the GPO. [
http://www.gpoaccess.gov/CFR]
By law, before rules are promulgated, enacted or revised, it has to go through a notice and comment procedure unless it falls under certain exceptions which are not applicable to the issue beforehand. Notice being publication in the Federal Register with opportunity for the public to comment, usually for a period of 30 days. The concept of notice and comment pretty much adopts the concept of due process with respect to rulemaking, with the added purpose of accepting public input, whether for or against and for agency education. Otherwise, any attempt to short-circuit this process amounts to illegal rulemaking, hence my opinion.
The 6 months to 1 year provision in the CFR is one such rule (and "makes a question of fact that continuous presence has been broken", etc. as you put it), and the application of the basic concept of disruption of continuous residence from that rule to back-to-back absences of less than 6 months (which we are now discussing) is also a rule within the meaning of the APA. Inclusion in the Field Adjudicator's Manual by way of example or otherwise (thanks BobSmyth for the link) without notice and comment amounts to illegal rulemaking IMHO. The FAM is binding on adjudicators after all. Incidentally, a recent controversy regarding the limitation of H1-B visas to owner-employees as published through a USCIS memorandum, and inclusion in the FAM is in the process of being challenged for failure to comply with the notice and comment requirements. Although based on a different set of rules as what we are discussing now, the basic legal precepts are applicable. I don't want to bore you with the details but if you are interested you can view AILA's letter to USCIS at
http://bit.ly/9DsQiC.
I hope I caused no confusion in my bringing up the subject and I highly appreciate your comments, irrespective of whether I agree with it or not. That said, I feel that I am close to thread-jacking OP's original concern which I have no intention of doing, and I also have no intention of prolonging this thread since the OP's questions have already been answered, so I will leave it at that.
Thanks!
