A. An unemployed individual shall be eligible to receive benefits with respect to any week only if the individual:

(1) has made a claim for benefits with respect to such week in accordance with such rules as the secretary may prescribe;

(2) has registered for work at, and thereafter continued to report at, an employment office in accordance with such rules as the secretary may prescribe, except that the secretary may, by rule, waive or alter either or both of the requirements of this paragraph as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which the secretary finds that compliance with such requirements would be oppressive or would be inconsistent with the purposes of the Unemployment Compensation Law. No such rule shall conflict with Subsection A of Section 51-1-4 NMSA 1978;

(3) is able to work and is available for work and is actively seeking permanent full-time work or part-time work in accordance with Subsection I of Section 51-1-42 NMSA 1978 and in accordance with the terms, conditions and hours common in the occupation or business in which the individual is seeking work, except that the secretary may, by rule, waive this requirement for individuals who are on temporary layoff status from their regular employment with an assurance from their employers that the layoff shall not exceed four weeks or who have an express offer in writing of substantially full-time work that will begin within a period not exceeding four weeks;

(4) has been unemployed for a waiting period of one week. A week shall not be counted as a week of unemployment for the purposes of this paragraph:

(a) unless it occurs within the benefit year that includes the week with respect to which the individual claims payment of benefits;

(b) if benefits have been paid with respect thereto; and

(c) unless the individual was eligible for benefits with respect thereto as provided in this section and Section 51-1-7 NMSA 1978, except for the requirements of this subsection and of Subsection D of Section 51-1-7 NMSA 1978;

(5) has been paid wages in at least two quarters of the individual's base period;

(6) has reported to an office of the division in accordance with the rules of the secretary for the purpose of an examination and review of the individual's availability for and search for work, for employment counseling, referral and placement and for participation in a job finding or employability training and development program. An individual shall not be denied benefits under this section for any week that the individual is participating in a job finding or employability training and development program; and

(7) participates in reemployment services, such as job search assistance services, if the division determines that the individual is likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the division, unless the division determines that:

(a) the individual has completed such services; or

(b) there is justifiable cause for the individual's failure to participate in the services.

B. A benefit year as provided in Section 51-1-4 NMSA 1978 and Subsection P of Section 51-1-42 NMSA 1978 may be established; provided an individual may not receive benefits in a benefit year unless, subsequent to the beginning of the immediately preceding benefit year during which the individual received benefits, the individual performed service in "employment", as defined in Subsection F of Section 51-1-42 NMSA 1978, and earned remuneration for such service in an amount equal to at least five times the individual's weekly benefit amount.

C. Benefits based on service in employment defined in Paragraph (8) of Subsection F of Section 51-1-42 and Section 51-1-43 NMSA 1978 are to be paid in the same amount, on the same terms and subject to the same conditions as compensation payable on the basis of other services subject to the Unemployment Compensation Law; except that:

(1) benefits based on services performed in an instructional, research or principal administrative capacity for an educational institution shall not be paid for any week of unemployment commencing during the period between two successive academic years or terms or, when an agreement provides for a similar period between two regular but not successive terms, during such period or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if the individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that the individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(2) benefits based on services performed for an educational institution other than in an instructional, research or principal administrative capacity shall not be paid for any week of unemployment commencing during a period between two successive academic years or terms if the services are performed in the first of such academic years or terms and there is a reasonable assurance that the individual will perform services for any educational institution in the second of such academic years or terms. If compensation is denied to an individual under this paragraph and the individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, the individual shall be entitled to a retroactive payment of benefits for each week for which the individual filed a claim and certified for benefits in accordance with the rules of the division and for which benefits were denied solely by reason of this paragraph;

(3) benefits shall be denied to any individual for any week that commences during an established and customary vacation period or holiday recess if the individual performs any services described in Paragraphs (1) and (2) of this subsection in the period immediately before such period of vacation or holiday recess and there is a reasonable assurance that the individual will perform any such services in the period immediately following such vacation period or holiday recess;

(4) benefits shall not be payable on the basis of services specified in Paragraphs (1) and (2) of this subsection during the periods specified in Paragraphs (1), (2) and (3) of this subsection to any individual who performed such services in or to or on behalf of an educational institution while in the employ of a state or local governmental educational service agency or other governmental entity or nonprofit organization; and

(5) for the purpose of this subsection, to the extent permitted by federal law, "reasonable assurance" means a reasonable expectation of employment in a similar capacity in the second of such academic years or terms based upon a consideration of all relevant factors, including the historical pattern of reemployment in such capacity, a reasonable anticipation that such employment will be available and a reasonable notice or understanding that the individual will be eligible for and offered employment in a similar capacity.

D. Paragraphs (1), (2), (3), (4) and (5) of Subsection C of this section shall apply to services performed for all educational institutions, public or private, for profit or nonprofit, which are operated in this state or subject to an agreement for coverage under the Unemployment Compensation Law of this state, unless otherwise exempt by law.

E. Notwithstanding any other provisions of this section or Section 51-1-7 NMSA 1978, no otherwise eligible individual is to be denied benefits for any week because the individual is in training with the approval of the division nor is the individual to be denied benefits by reason of application of provisions in Paragraph (3) of Subsection A of this section or Paragraph (3) of Subsection A of Section 51-1-7 NMSA 1978 with respect to any week in which the individual is in training with the approval of the division. The secretary shall provide, by rule, standards for approved training and the conditions for approving training for claimants, including any training approved or authorized for approval pursuant to Section 236(a)(1) and (2) of the federal Trade Act of 1974, as amended, or required to be approved as a condition for certification of the state's Unemployment Compensation Law by the United States secretary of labor.

F. Notwithstanding any other provisions of this section, benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for the purposes of performing the services or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 212(d)(5) of the federal Immigration and Nationality Act; provided that:

(1) any information required of individuals applying for benefits to determine their eligibility for benefits under this subsection shall be uniformly required from all applicants for benefits; and

(2) an individual shall not be denied benefits because of the individual's alien status except upon a preponderance of the evidence.

G. Notwithstanding any other provision of this section, benefits shall not be paid to any individual on the basis of any services substantially all of which consist of participating in sports or athletic events or training or preparing to so participate for any week that commences during the period between two successive sport seasons, or similar periods, if the individual performed the services in the first of such seasons, or similar periods, and there is a reasonable assurance that the individual will perform the services in the latter of such seasons or similar periods.

H. Students who are enrolled in a full-time course schedule in an educational or training institution or program, other than those persons in an approved vocational training program in accordance with Subsection E of this section, shall not be eligible for unemployment benefits unless the individual can demonstrate to the division's satisfaction that the individual is able, available and actively seeking full- or part-time work in accordance with rules prescribed by the secretary.

I. As used in this subsection, "seasonal ski employee" means an employee who has not worked for a ski area operator for more than six consecutive months of the previous twelve months or nine of the previous twelve months. An employee of a ski area operator who has worked for a ski area operator for six consecutive months of the previous twelve months or nine of the previous twelve months shall not be considered a seasonal ski employee. The following benefit eligibility conditions apply to a seasonal ski employee:

(1) except as provided in Paragraphs (2) and (3) of this subsection, a seasonal ski employee employed by a ski area operator on a regular seasonal basis shall be ineligible for a week of unemployment benefits that commences during a period between two successive ski seasons unless the individual establishes to the satisfaction of the secretary that the individual is available for and is making an active search for permanent full-time work;

(2) a seasonal ski employee who has been employed by a ski area operator during two successive ski seasons shall be presumed to be unavailable for permanent new work during a period after the second successive ski season that the individual was employed as a seasonal ski employee; and

(3) the presumption described in Paragraph (2) of this subsection shall not arise as to any seasonal ski employee who has been employed by the same ski area operator during two successive ski seasons and has resided continuously for at least twelve successive months and continues to reside in the county in which the ski area facility is located.

J. Notwithstanding any other provision of this section, an otherwise eligible individual shall not be denied benefits for any week by reason of the application of Paragraph (3) of Subsection A of this section because the individual is before any court of the United States or any state pursuant to a lawfully issued summons to appear for jury duty.

History: 1953 Comp., § 59-9-4, enacted by Laws 1969, ch. 213, § 2; 1971, ch. 209, § 1; 1977, ch. 321, § 2; 1978, ch. 165, § 1; 1979, ch. 280, § 13; 1981, ch. 354, § 2; 1982, ch. 41, § 2; 1983, ch. 199, § 2; 1984, ch. 45, § 1; 1987, ch. 63, § 1; 1987, ch. 302, § 1; 1988, ch. 130, § 1; 1990, ch. 18, § 2; 1991, ch. 122, § 3; 1993, ch. 209, § 2; 1995, ch. 196, § 1; 2000, ch. 3, § 2; 2000, ch. 7, § 2; 2003, ch. 47, § 2; repealed and reenacted by Laws 2003, ch. 47, § 9; 2005, ch. 3, § 2; 2011, ch. 184, § 2.

Repeals and reenactments. — Laws 1969, ch. 213, § 1, repealed former 59-9-4, 1953 Comp., relating to benefit eligibility condition, and enacted a new 59-9-4, 1953 Comp.

Laws 2007, ch. 137, § 6 repealed Laws 2005, ch. 3, § 7 effective July 1, 2007. Laws 2005, ch. 3, § 7 would have repealed and reenacted this section, however it was repealed prior to taking effect.

Cross references. — For the federal Immigration and Nationality Act, see 8 U.S.C. §§ 1101 to 1503.

The 2011 amendment, effective July 1, 2011, prohibited the payment of unemployment benefits to full-time students unless they demonstrate that they are seeking full or part time work.

Applicability. — Laws 2011, ch. 184, § 6 provided that Laws 2011, ch. 184, § 2 applies to benefit years beginning on or after July 1, 2011.

The 2005 amendment, effective February 8, 2005, in Subsection A(3), replaced "and substantially full-time work" with "full-time work or part-time work in accordance with Subsection I of Section 51-1-42 NMSA 1978 and"; in Subsection E, inserted "or attending school on a full time basis" after "individual is training"; deleted former Subsection H relating to students who are enrolled in a full time course schedule; and relettered Subsections I and J as Subsections H and I.

The 2003 amendment, amended Laws 1969, ch. 213, § 2, as amended by Laws 2003, ch. 3, § 2 (repealed by Laws 2003, ch. 47, § 14), and Laws 2000, ch. 7, § 2, effective January 1, 2004, substituted "rules" for "regulations" throughout the section; in Paragraph A(3) deleted "and substantially" following "seeking permanent" near the beginning, inserted "work or part-time" following "full-time", inserted "in accordance with Subsection I of Section 51-1-42 NMSA 1978 and" following "work"; substituted "D" for "E" near the end of Subparagraph A(4)(c); in Subsection E(2) inserted "or attending school on a full-time basis" following "in training" near the beginning, substituted "Paragraph (3) of Subsection A" for "Subsection C" near the middle, inserted "or attending school on a full-time basis" following "is in training" near the middle; and deleted former Subsection H and redesignated subsequent subsections accordingly.

Laws 2003, ch. 47, § 15 provided that the effective date of the provisions of Laws 2003, ch. 47, §§ 8 through 12 was the earliest of (1) June 30, 2007; or (2) the date that the unemployment compensation fund is less than three and three-fourths percent of total payrolls pursuant to the computation provided in Paragraph (1) of Subsection I of 51-1-11 NMSA 1978.

The compiler was informed that the event described in Laws 2003, ch, 47, § 15 occurred prior to the enactment of the 2005 amendment.

The 2000 amendment, effective July 1, 2000, substituted "been paid wages in at least two quarters of his base period" for "during his base period, been paid wages for insured work totaling not less than one and one-fourth his high-quarter wages" in Subsection A(5) and substituted "at least five" for "the lesser of three-thirteenths of the individual's high-quarter wages and six" near the end of Subsection B.

The 1995 amendment, effective April 6, 1995, substituted "employers" for "employer" in Paragraph (3) of Subsection A, added Paragraph (7) of Subsection A, and made minor stylistic changes throughout the section.

The 1993 amendment, effective April 5, 1993, substituted "Section 212(d)(5)" for "Sections 203(a)(7) or 212(d)(5)" near the end of the introductory paragraph of Subsection F.

The 1991 amendment, effective April 3, 1991, substituted "division" for "department" throughout the section; inserted "operator" following "ski area" throughout Subsection I; in Paragraph (3) of Subsection (I), inserted "facility" preceding "is located" and deleted "if that county has an unemployment rate of more than twelve percent" at the end of the paragraph; added Subsection J; and made a minor stylistic change in Subsection G.

The 1990 amendment, effective February 28, 1990, rewrote Subsection F which read "Notwithstanding any other provisions of this section, benefits based on services performed by an alien shall not be payable unless such alien is an individual who was lawfully admitted for permanent residence, was lawfully present for purposes of performing such services, or was permanently residing in the United States under color of law at the time such services were performed; provided that" and made stylistic changes in Paragraph (3) of Subsection A, Paragraph (3) of Subsection C and Paragraph (1) of Subsection I.

Period between academic terms. — Where school educational aides had reasonable assurance of employment for the successive academic year, and the aides were furloughed for seventeen weeks rather than the normal ten weeks due to budget cuts, the aides were entitled to unemployment benefits for the seven extra weeks of unemployment that did not fall between the ordinary terms of employment during the academic year. Ortiz v. New Mexico Emp't Sec. Dep't, 1986-NMCA-133, 105 N.M. 313, 731 P.2d 1357.

Availability. — An employee who, through no fault of the employee, is unable to provide transportation to and from work, who would not work a day shift of eight hours for five days, and who refused to work from 3:30 p.m. to 10:30 a.m. Monday through Friday and 8:00 a.m. to 2:30 a.m. on Saturday, was not available for work. Moya v. Employment Sec. Comm'n, 1969-NMSC-022, 80 N.M. 39, 450 P.2d 925.

Where the employee quit a job as a grocery clerk to accompany the employee's spouse, who had been laid off from the spouse's job, to a small rural community where they owned property; the rural community had only one grocery store which hired one clerk; there was another grocery store in a rural community twelve miles distant; and the employee applied regularly at both grocery stores, the employee had not removed the employee from the labor market and was not disqualified from receiving unemployment compensation benefits. Parsons v. Employment Sec. Comm'n, 1963-NMSC-007, 71 N.M. 405, 379 P.2d 57.