New Mexico § 51-1-5 - Benefit eligibility conditions

§ 51-1-5. Benefit eligibility conditions

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 1 , 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; 2 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. 1

19 U.S.C.A. § 2296(a)(1) and (2). 2

8 U.S.C.A. § 1182(d)(5).