New Mexico Background Check Laws (2026 Guide)

New Mexico regulates background checks through the Criminal Offender Employment Act, which under NMSA 28-2-3.1 bars a private employer that uses a written or electronic job application from asking about criminal history on that application and separately bars public employers (the state and its political subdivisions) from doing so under NMSA 28-2-3, and through NMSA 56-3-6, which limits consumer reporting agencies to a seven-year lookback on most convictions.

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), NMSA 1978, Chapter 28, Article 2. Originally enacted to cover only public employers under NMSA 28-2-3 (which restricts criminal-history inquiries by "the state or any of its political subdivisions"), the law was significantly expanded in 2019 when Governor Michelle Lujan Grisham signed Senate Bill 96 on April 3, 2019 to also cover private employers, adding NMSA 28-2-3.1 ("Employment eligibility determination; private employers"). The expanded law took effect on June 14, 2019.

Who Must Comply

NMSA 28-2-3.1(A) applies to any private employer in New Mexico that uses a written or electronic employment application. The section contains no employee-count threshold. (The Human Rights Act, which supplies the remedy for a violation, defines "employer" as a person employing four or more persons in NMSA 28-1-2(B). That definition governs the enforcement route, not the wording of the prohibition itself.) The Act also continues to cover the state and its political subdivisions under NMSA 28-2-3.

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

Under NMSA 28-2-3.1(B), an applicant who claims to be aggrieved by a violation may seek relief under the New Mexico Human Rights Act through the process set out in NMSA 28-1-10 through 28-1-13. There is no direct right to sue the employer first. The applicant must begin by filing a complaint with the New Mexico Human Rights Bureau within 300 days of the alleged violation (NMSA 28-1-10(A)).

Court relief is available after that administrative step. Under NMSA 28-1-13, a person aggrieved by an order of the commission may obtain a trial de novo by filing a notice of appeal in district court within 90 days of service of the order, either party may request a jury, and if the complainant prevails the court in its discretion may allow actual damages and reasonable attorney fees. A complainant who has received a probable cause determination may also request a waiver of the commission hearing under NMSA 28-1-10(J) and take the case to district court for a trial de novo.

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:

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

SB 467, introduced in the 2025 legislative session, proposes removing embezzlement from this exclusion list, but as of this writing embezzlement remains excluded under current law (NMSA 29-3A-5(G)).

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 release or parole. 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 private employers that use a written or electronic application)
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 20 hours or more 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 for one of two reasons: (1) the applicant, employee, or licensee has been convicted of a felony that directly relates to the particular trade, business, or profession, or (2) the applicant, employee, or licensee has been convicted of homicide, kidnapping, human trafficking, trafficking in controlled substances, criminal sexual penetration or related sexual offenses, or child abuse and has applied for a teaching certificate, a child-care facility license, or employment at a child-care facility. For that second category of serious offenses, the statute allows denial regardless of evidence of rehabilitation. The board must state its reasons in writing when a decision rests on either cause.

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 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. Note: NMSA 29-17-1 was repealed in 1998. The Act's short-title section is now NMSA 29-17-2, which provides that Sections 29-17-2 through 29-17-5 NMSA 1978 may be cited as the "Caregivers Criminal History Screening Act"; NMSA 28-2-5(A)(3) cross-references the same section range.

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

NMSA 29-17-5(D) enumerates the disqualifying felony convictions directly in the statute rather than delegating the list to administrative rules. Under current law, the following felony convictions disqualify an applicant, caregiver, or hospital caregiver from employment as a caregiver: homicide; trafficking controlled substances; kidnapping, false imprisonment, aggravated assault, or aggravated battery (including aggravated battery of a household member); rape, criminal sexual penetration, criminal sexual contact, incest, indecent exposure, or other related sexual offenses; crimes involving adult abuse, neglect, or financial exploitation; crimes involving child abuse or neglect; robbery, larceny, burglary, fraud, extortion, forgery, embezzlement, credit card fraud, or receiving stolen property; an attempt, solicitation, or conspiracy involving any of the above; human trafficking; assault of a peace officer; identity theft; or cruelty to animals. The New Mexico Health Care Authority administers this screening program, not the Department of Health.

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 by adding NMSA 28-2-3.1
• Expanded the Criminal Record Expungement Act alongside the COEA reforms