New Mexico Background Check Laws (2026 Guide)

New Mexico has built a detailed framework of background check laws that affects employers, landlords, licensing boards, and individuals seeking to clear their records. Whether you are hiring employees, screening tenants, applying for a professional license, or trying to expunge a past conviction, understanding these laws is essential.

This guide covers every major area of New Mexico background check law, including the Ban the Box provisions, expungement eligibility, lookback periods, federal FCRA interaction, and recent legislative changes through 2025.

Ban the Box: The Criminal Offender Employment Act

New Mexico's Ban the Box law is part of the Criminal Offender Employment Act (COEA), codified at NMSA 1978, Sections 28-2-1 through 28-2-6. Originally enacted to cover only public employers, the law was significantly expanded in 2019 when Governor Michelle Lujan Grisham signed Senate Bill 96 on April 3, 2019. The expanded law took effect on June 14, 2019.

Who Must Comply

The law applies to all private employers in New Mexico with four or more employees. It also continues to cover all state agencies and political subdivisions.

What the Law Requires

Employers covered by the COEA may not include questions about an applicant's arrest or conviction history on an initial written or electronic employment application. This means no checkbox asking "Have you ever been convicted of a crime?" and no open-ended questions about criminal history on the application form itself.

Employers may inquire about and consider an applicant's criminal history after reviewing the application and upon discussion of employment with the applicant. In practice, this means criminal history questions are permitted after the applicant has been interviewed or had a substantive conversation about the position.

What the Law Does Not Restrict

The COEA does not prevent employers from:

• Stating in a job posting that the law or company policy could disqualify applicants with certain criminal histories from a particular position
• Asking about criminal history during an interview or at any point after the initial application stage
• Conducting a criminal background check at any point after the initial application
• Considering criminal convictions when making hiring decisions, as long as the inquiry happens after the application stage

Importantly, the law does not limit how far back an employer may look when considering criminal records. It also does not require employers to give applicants an opportunity to explain their criminal history before making a hiring decision.

Enforcement and Penalties

Violations of the COEA are enforced through the New Mexico Human Rights Act. There is no private right of action. An individual who believes an employer violated the law may file a complaint with the New Mexico Human Rights Bureau within 300 days of the alleged violation.

Criminal Record Expungement Act

New Mexico's Criminal Record Expungement Act, codified at NMSA 1978, Sections 29-3A-1 through 29-3A-9, provides a pathway for individuals to have their criminal records expunged. The law was significantly expanded during a 2021 special legislative session.

Expungement for Non-Convictions

If you were arrested, indicted, or charged with a crime but the case did not result in a conviction, you may petition the district court for expungement one year after the date of final disposition. This applies to all offenses, including felonies, misdemeanors, municipal ordinance violations, penalty assessments under the Criminal Code, and violations under the Motor Vehicle Code.

Victims of identity theft or wrongful arrest may petition for expungement at any time, without a waiting period.

Expungement for Convictions

Individuals convicted of certain offenses may petition for expungement after completing their sentence (including any parole or probation) and paying all fines and fees. The waiting periods after sentence completion are:

Offense Level	Waiting Period
Municipal ordinance violation	2 years
Misdemeanor (most)	2 years
Misdemeanor aggravated battery	4 years
Fourth-degree felony	4 years
Third-degree felony	6 years
Second-degree felony	8 years
First-degree felony	10 years
Crimes Against Household Members Act offenses	10 years

During the entire waiting period, the petitioner must have no new convictions.

Offenses That Cannot Be Expunged

The following categories of convictions are not eligible for expungement under the current law:

• Offenses committed against a child
• Offenses that caused great bodily harm or death to another person
• Sex offenses
• Driving while under the influence of intoxicating liquor or drugs (DWI/DUI)

Embezzlement was previously on this exclusion list, but SB 467, introduced in the 2025 legislative session, proposes removing embezzlement from the list of ineligible offenses.

Effect of Expungement

Once a court grants an expungement order, the proceedings are treated as if they never occurred. Officials and the person who received the expungement order may respond to any inquiry by stating that no record exists. The New Mexico Department of Public Safety operates an Expungement Unit that processes these orders and coordinates the removal of records from state databases.

Lookback Periods and Reporting Limitations

New Mexico has specific rules governing how far back consumer reporting agencies may look when compiling background check reports. These rules work alongside the federal Fair Credit Reporting Act (FCRA) to create a layered system of limitations.

State Seven-Year Rule

Under NMSA 56-3-6, consumer reporting agencies in New Mexico may only report criminal convictions for seven years from the date of conviction or release from parole, whichever is later. This is stricter than the federal FCRA in some respects.

Additional state reporting restrictions include:

• Non-conviction records: Arrests that did not result in a conviction cannot be reported at all, regardless of when they occurred
• Pardoned convictions: Convictions for which a pardon has been granted are not reportable
• Expunged records: Once a conviction is expunged, it cannot appear on any background check report
• Pending cases: Arrests and pending cases may only be reported while the case is still active

Federal FCRA Interaction

The federal Fair Credit Reporting Act (15 U.S.C. 1681) provides a baseline that applies in all states, including New Mexico. Where New Mexico law is more protective of individuals, the state law takes precedence. Where the FCRA provides stronger protections, it overrides state rules.

Key FCRA requirements that apply in New Mexico:

• Written consent: Employers must obtain written authorization from an applicant before requesting a consumer report or background check
• Standalone disclosure: The disclosure that a background check will be conducted must appear on a separate document, not buried in the job application
• Pre-adverse action notice: Before taking adverse action based on a background check, the employer must provide the applicant with a copy of the report and a summary of their rights under the FCRA
• Adverse action notice: After making a final adverse decision, the employer must send a second notice informing the applicant of the decision, the name of the reporting agency, and the applicant's right to dispute the report
• Salary exception: Under the FCRA, the seven-year limitation on reporting adverse information does not apply to positions with an annual salary of $75,000 or more

Credit Report Restrictions

New Mexico places additional restrictions on employment-related credit checks. Employers may only request credit reports for positions that involve significant financial duties or responsibilities. Written consent from the applicant is required before any employment credit check can be conducted.

Employment Background Checks

Beyond the Ban the Box requirements, New Mexico employers must navigate several layers of regulation when conducting background checks on job applicants and current employees.

General Process

Employers typically conduct background checks through third-party consumer reporting agencies (CRAs). Under both state and federal law, the process requires:

1. Providing the applicant with a clear, standalone written disclosure that a background check will be conducted
2. Obtaining the applicant's signed written consent
3. Waiting until after the initial application stage to inquire about criminal history (for employers with four or more employees)
4. Following adverse action procedures if the results lead to a negative employment decision

Specific Industry Requirements

Several New Mexico statutes mandate background checks for particular types of employment:

• Child care and youth services: Under NMSA 32A-15-3, programs having primary custody of children for more than 20 hours per week must conduct criminal background checks on all employees and volunteers. This statute was updated in 2024 to align with FBI requirements for fingerprint-based checks.
• Education: Under NMSA 22-10A-5, school employees and applicants must undergo criminal history record checks, including fingerprint submissions to both state and federal repositories.
• Healthcare and caregiving: The Caregivers Criminal History Screening Act (covered in detail below) requires fingerprint-based checks for all caregivers.

Housing and Tenant Screening

Landlords and property managers in New Mexico may conduct background checks on prospective tenants, but they must follow both state and federal rules.

Tenant Screening Regulations

New Mexico does not have a statewide law that prohibits landlords from considering criminal history in rental decisions. However, landlords must comply with:

• The federal Fair Housing Act, which prohibits housing discrimination based on race, color, national origin, religion, sex, familial status, and disability. The U.S. Department of Housing and Urban Development (HUD) has issued guidance stating that blanket bans on renting to anyone with a criminal record may violate the Fair Housing Act due to disparate impact on protected groups.
• New Mexico state fair housing laws, which mirror federal protections and are enforced by the New Mexico Human Rights Bureau.

SB 267: Tenant Screening Fee Limits (2025)

In April 2025, Governor Lujan Grisham signed Senate Bill 267, which significantly reformed tenant screening practices. Key provisions include:

• $50 fee cap: Landlords and property owners may charge a maximum of $50 to process a tenant screening report
• No additional application fees: No other fee may be charged to a tenant for processing a rental application
• Refund requirement: The screening fee must be refunded if no screening is actually conducted or if the unit is already rented at the time of application
• 90-day limit: Only one screening fee per applicant is allowed within a 90-day period
• Report copies required: Landlords who charge for screening must provide copies of all reports to the applicant
• Applicant-provided reports: Landlords may not charge for screening if the applicant provides their own reports
• Penalty for violations: An owner who charges an unauthorized screening fee is liable for $250 in damages

Best Practices for Landlords

To reduce legal risk when using criminal background checks in tenant screening, New Mexico landlords should:

• Evaluate each applicant individually rather than applying blanket criminal history policies
• Consider the nature, severity, and recency of any criminal conviction
• Consider whether the conviction is relevant to tenancy (for example, property damage or violent offenses)
• Document the specific, legitimate reason for any denial based on criminal history
• Follow FCRA adverse action procedures when denying an applicant based on a consumer report

Licensing and Professional Background Checks

New Mexico's Criminal Offender Employment Act (NMSA 28-2-3) also governs how licensing boards treat criminal convictions. A criminal conviction cannot serve as an automatic bar to obtaining a professional license, permit, certificate, or other authorization to practice a regulated trade, business, or profession.

How Licensing Boards May Consider Convictions

Licensing boards and agencies may consider criminal convictions, but they must evaluate each case individually. Under NMSA 28-2-4, a board may refuse to grant, renew, suspend, or revoke a license based on a conviction, but must consider factors such as:

• The nature and seriousness of the crime
• The relationship between the crime and the duties of the licensed profession
• The time elapsed since the conviction
• Evidence of rehabilitation
• The applicant's employment history

Fingerprint Requirements

Many licensing boards under the New Mexico Regulation and Licensing Department (RLD) require fingerprint-based background checks for initial licensure and reinstatement. These fingerprints are submitted to both the New Mexico Department of Public Safety and the FBI for processing.

The RLD oversees background checks for professions including real estate, accounting, nursing, pharmacy, construction, and many others. Processing times vary, but electronic fingerprint submissions typically receive a state response within 24 to 48 hours and an FBI response within 48 to 72 hours.

Caregivers Criminal History Screening Act

The Caregivers Criminal History Screening Act (NMSA 29-17-1 through 29-17-5) is one of the most significant background check laws in New Mexico. It requires criminal history screening for anyone employed as a caregiver working with vulnerable populations.

Who Must Be Screened

All caregivers and hospital caregivers must undergo a nationwide criminal history screening before beginning employment with a care provider. Health facilities and Medicaid community-based waiver providers must complete the screening no later than 20 calendar days after the first day of employment.

Screening Process

The screening involves fingerprint submission for clearance through both state and federal criminal history repositories. The New Mexico Health Care Authority administers the program, while the Department of Public Safety processes the fingerprints.

The process includes checks against:

• New Mexico state criminal records
• FBI national criminal database
• National sex offender registry
• Healthcare sanctions databases
• Abuse registries

Disqualifying Offenses

Certain criminal convictions automatically disqualify an individual from employment as a caregiver. These typically include violent felonies, sex offenses, offenses involving abuse or neglect, and certain property crimes. The specific list of disqualifying offenses is maintained by the Department of Health through administrative rules.

Confidentiality

All criminal history records obtained through this screening process are confidential. They may only be used for determining whether a caregiver has a disqualifying conviction and cannot be shared or used for any other purpose.

How to Obtain a Background Check in New Mexico

The New Mexico Department of Public Safety (NMDPS) operates the state's Criminal History Clearinghouse and handles background check requests.

For Individuals

To obtain a copy of your own criminal history record:

1. Complete the DPS Authorization for Release of Information form (must be legibly filled out and notarized)
2. Submit the form with a $15 fee (money order or cashier's check payable to the Department of Public Safety)
3. Mail to the Law Enforcement Records Bureau in Santa Fe

Fingerprinting Services

The NMDPS offers manual fingerprinting at its headquarters at 4491 Cerrillos Rd., Santa Fe, NM 87507. Walk-in hours are Monday through Friday, 8 AM to 4 PM. Fees are $9 for the first two fingerprint cards and $2.50 for each additional card.

Electronic fingerprint submissions are also available through authorized vendors. Once submitted electronically, state results are typically returned within 24 to 48 hours, and FBI results within 48 to 72 hours.

Recent Legislative Changes

New Mexico has been actively updating its background check and criminal record laws. Key recent developments include:

2025 Legislative Session

• SB 267: Signed into law in April 2025, this bill caps tenant screening fees at $50, requires fee refunds when no screening occurs, and mandates that landlords provide copies of all screening reports to applicants.
• SB 467: Introduced in the 2025 session, this bill proposes removing embezzlement from the list of offenses that are permanently ineligible for expungement. It also seeks to streamline the expungement process by removing certain notice requirements to the Department of Public Safety and eliminating time requirements for courts to issue orders in identity theft cases.

2024 Updates

• Updated criminal background check requirements for programs with primary custody of children to comply with FBI fingerprint submission standards
• Expanded background check requirements for student interns at the Children, Youth and Families Department

2021 Special Session

• Major expansion of the Criminal Record Expungement Act, creating a comprehensive framework for expunging both conviction and non-conviction records with specified waiting periods

2019 Reforms

• SB 96 extended Ban the Box protections to private employers with four or more employees
• Expanded the Criminal Record Expungement Act alongside the COEA reforms

Frequently Asked Questions

Sources and References

• New Mexico Criminal Offender Employment Act, SB 96 (2019)
• New Mexico Criminal Record Expungement Act, SB 2 (2021 Special Session)
• New Mexico SB 467 (2025) - Expungement Reform
• New Mexico SB 267 (2025) - Housing Application Fees
• New Mexico Department of Public Safety - Fingerprinting and Background Checks
• New Mexico Department of Public Safety - Expungements
• New Mexico Health Care Authority - Background Checks
• New Mexico Health Care Authority - Caregivers Criminal History Screening Program
• New Mexico Regulation and Licensing Department
• Federal Trade Commission - Fair Credit Reporting Act
• HUD Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records
• NMSA 29-3A-5 - Expungement of Records Upon Conviction