You are definitely going to need to get the divorce from your prior husband finalized, and you are definitely going to need to file a new I-130.
You may or may not need to re-marry the person you are with now. It will depend on the laws in the location where you married. In some states, once the impediment to a marriage is removed, the new marriage springs into life. In other jurisdictions this is not true.
To be safe, and to make the record clear for USCIS, I would recommend getting re-married once the divorce is final, even if, as a matter of law, your currently invalid marriage becomes valied automatically when the divorce is finalized.
You should not conceal this from USCIS. You should be very upfront about the honest mistake you made in marrying someone when your prior marriage was not terminated.
Your question appears to begin in the middle, rather than at the beginning.
If you or your partner did not divorce your prior marriages BEFORE you and your partner married, then USCIS will conclude that your current marriage to your partner is NOT VALID.
After all prior marriages are ended, by divorce, annulment, or death, then you would need to marry your partner again.
You may not submit the I-130 for your partner as your spouse until you are legally and validly married to him.
You should consult with an immigration lawyer about the situation. You may also want to consult with a family/divorce lawyer.
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1. Yes, you must terminate your marriage to your current husband (i.e. non-Mexican husband) and remarry prior to filing an I-130 on his behalf. You should be able to have the marriage annulled rather than proceed on a divorce since the marriage is void.
2. For immigration purposes, your current marriage is void regardless of the fact that the prior marriage has now been terminated by divorce. A divorce after the fact cannot cure a void marriage for immigration purposes.
3. No. As stated in my answer to number, you will have to start over after the divorce from former spouse is terminated and you have properly annulled the current marriage. You can seek annulment at any time. You do not need to wait for the divorce to be finalized.
4. It is void so you will be unable to file an I-130.
5. You will need to disclose all prior divorces and annulments on your petition. This will include any termination of your current marriage. You will not necessarily need to provide an explanation with the petition, but will likely be questioned about it by USCIS at the interview.
I would strongly encourage you to retain an experienced matrimonial/family law attorney to properly handle the annulment. I would also encourage you to retain an experienced immigration attorney to assist you with this matter during the annulment through the filing of the petition.
Sorry to hear you are going through what must be a very trying situation. Your question does not seem complete but from what I can see this is how I would answer you:
1. No you do not have to divorce but you do have have to remarry
2. It will be void
3. It depends on validity period for the license. The marriage will be void though
4. It will be void (it is void now since you never divorced).
5. It never happened, but in interview you can disclose the oversight and explain. It should not be a problem.
Divorce old husband, remarry current husband , file for current husband
Samuel Ouya Maina, Esq. 415.391.6612 firstname.lastname@example.org Law Offices of S. Ouya Maina, PC 332 Pine Street, Suite 707 San Francisco, CA 94104
Maggie, the first thing that you must do is divorce your previous husband as soon as possible. As soon as you have the final decree, you may then proceed to remarry your current partner/spouse. Once you have a valid marriage license, you can then re-file the I-130 for your current spouse. When you are asked about why there are two applications and two marriage certificates, you or your attorney can explain it at the interview. You will not have a problem so long as you are able to show proof of the divorce and the refiling of the I-130.
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